How probate works

Probate is the court process of proving a Will is genuine and administering the estate: confirming who is in charge, settling the debts, and supervising who gets what.

It is slower and more public than most people expect, and the honest summary is that it is usually survivable, occasionally expensive, and very hard to predict from outside the state it happens in.

The steps, in order

1. Someone files the Will with the court

   Usually the executor, or a beneficiary if the named executor cannot act. It is filed in the county where the person lived, which is why a Will records the state of residence. With no Will, someone petitions to be appointed instead.

2. The court gives someone authority

   The document that grants it is called letters testamentary when there is a Will and letters of administration when there is not. Until it is issued, nobody can sell the house or close an account.

3. Debts, heirs and beneficiaries are notified

   Known creditors are written to, and notice is often published. This exists so that people owed money get a chance to claim it before the estate is handed out.

4. The estate is inventoried and valued

   Accounts, property, vehicles, investments and belongings, valued as of the date of death. This inventory is what the distributions are calculated from.

5. Debts, expenses and taxes are paid

   Funeral costs, the last medical bills, cards, mortgages and any taxes. An estate is generally administered for months before anything is distributed, so that this happens first.

6. What remains is distributed

   Per the Will, or by the state’s intestacy rules if there is none. The last thing paid out is the residuary estate — everything left over.

7. The estate is closed

   The executor accounts for what was received and paid, and the court discharges them.

What makes it long and expensive

• Whether there is a Will at all. Without one, the court settles who administers the estate before anything else can start.
• How large and how simple the estate is. Many states have a shorter, cheaper procedure below a threshold.
• Whether anything is disputed. A challenge, or a beneficiary who will not sign a receipt, is what turns weeks into years.
• Whether assets avoid probate already. Life insurance with a named beneficiary, retirement accounts, and property held jointly with right of survivorship pass outside both the Will and probate.
• How quickly the executor acts. Nothing moves until someone files, and that is the one variable the family controls.

How probate is avoided

• Name beneficiaries on retirement accounts and insurance policies, and keep them current.
• Hold property jointly with right of survivorship where that is appropriate for you.
• Use a revocable living trust for the assets you are willing to retitle into it — see our comparison of a Will and a trust.
• Make a Will anyway. It does not avoid probate, but it decides who administers the estate and who receives what, which is the expensive part when it is left open.

What this means in practice

A recent, clearly signed Will with a self-proving affidavit and an executor who is willing to act is the difference between a routine administration and a slow one. The steps above are not avoidable by being careful; they are made shorter by being clear.

No page can tell you what probate will cost where you live. That figure depends on your state, the size of the estate, and whether anyone objects — so we are not going to invent a number for you. See whether a trust would avoid it, or what the executor has to do.

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