How does probate work? Your guide to the probate process

Probate is often seen as scary or complex. But this important process is a necessary step in honoring a loved one’s wishes after they pass away. Understanding how probate works can make the process easier and more manageable than you might think.

What is probate?

Probate is the court-supervised process of distributing your estate after you pass away. During probate, a representative, or executor, will be in charge of inventorying your assets, paying your debts, and distributing your property according to your last will and testament.

Probate takes time to complete, and the American Bar Association estimates that the average U.S. estate takes six to nine months to probate. This timeline depends on the state you live in, the size of your estate, and whether or not you have a will.

Is probate necessary?

In most states, probate is a necessary part of transferring ownership of certain assets to your loved ones after you pass away. Probate is especially important for passing on titled assets, like real estate property or land.

When is probate not necessary?

There are situations where probate isn’t necessary.

For example, some states offer simplified or alternative versions of probate, to help make transferring your assets easier. Whether your estate’s eligible for a probate alternative depends on the types of assets you own and the total value of your estate.

Certain types of assets are also able to bypass probate and transfer directly to your loved ones. These include:

• Assets with a named beneficiary, like life insurance policies or retirement accounts
• Jointly-owned property (with both names listed on the title or deed)
• Financial or investment accounts naming a beneficiary
• Jointly-owned business assets
• Assets in a living trust
• Certain personal possessions
• Vehicles

Visit your county court or talk to an estate planning attorney for more information on what options are available in your state.

What assets are subject to probate?

Any asset that has to go through the probate process is called a probate asset. Probate assets include:

• Individually-owned assets: This includes any assets that you own solely in your name, including titled assets (like your house), investment accounts or portfolios, bank or brokerage accounts, and businesses.
• Personal property: This includes your personal items, like jewelry, collectibles, furniture, family heirlooms, or clothing.
• Tenancy in common property: These assets are legally owned by multiple people, meaning each person’s name is on the title or deed. Unlike jointly-owned property, in a tenancy in common arrangement, each person owns a percentage of the property. Your share is subject to probate after you pass away.
• Non-probate assets without a beneficiary: Certain assets (like life insurance policies and retirement accounts) automatically pass directly to a chosen beneficiary after your death, without having to go through the probate process. But if your beneficiary passes away before you do, or you don’t choose a beneficiary for these assets at all, these assets will need to go through probate.

Learn more about which assets are subject to probate.

How does probate work?

If someone chooses you as their executor, you become responsible for probating their estate after they pass away. While the probate process can vary from state to state, you’ll generally have to complete the following steps:

• Submit the death certificate. To start probate, you need to file the person’s death certificate at their local court.
• Submit the will. You’ll submit the will to the deceased’s local court. The court will then confirm that the will is valid.
• File for probate. Once the court validates the will, you’ll file a petition (or request) to start the probate process.
• Receive authorization from the court. If your petition for probate is approved, the county court will grant you permission to administer the estate.
• Contact beneficiaries. Next, you’ll inform the deceased’s beneficiaries that the probate process has started. If the deceased didn’t list any beneficiaries in their will, state law will determine who inherits these assets.  
• Inventory assets. Depending on the state, you’ll have a certain number of days to make a list of all of the deceased’s assets (and their values) and submit this information to the court. You’ll also have to identify any debts, bills, or taxes that need to be paid.
• Pay debts. You’ll use funds from the person’s estate to pay any debts. All of the estate’s debts must be paid before any assets can be paid out to beneficiaries.
• Distribute assets to beneficiaries. After you inventory the assets and pay debts, you’ll ask the court for permission to distribute remaining assets to the deceased’s beneficiaries. When approved, you’ll distribute all remaining assets to the deceased’s beneficiaries according to their will.
• Close the estate. Once these steps are complete, you’ll petition the court to close out the estate. This ends the probate process.

For more information about the probate process, check out our step-by-step guide on how to probate a will.

Probate without a will

Dying without a will is known as “dying intestate.” An intestate estate still has to go through probate.

If you die intestate, your county court uses a set of rules called intestate succession laws to decide what happens to your estate. These laws determine who receives your property, who will care for your minor children or pets, and how to pay any debts you left behind.

These laws also determine who should administer your estate. This person (known as an administrator of estate) will follow the above steps to complete the probate process, but it will likely take longer than if you had a will to guide them. This is because the administrator doesn’t have your will to help them locate all of your assets, identify your loved ones and next of kin, and figure out what debts you owe.

How to avoid probate

Probate isn’t a bad thing, but it can be a long and expensive process. That’s why some states offer simplified versions of probate, which make completing the process easier and faster than full estate administration.

You can also avoid or bypass probate by:

• Creating a living trust. Property in a trust doesn’t have to go through probate. Instead, trust assets transfer directly to your beneficiaries.
• Jointly owning your property. If you own a home or other property with someone else and you’re both listed on the deed, the other person will become the sole owner when you pass away. This happens automatically and doesn’t require probate.  
• Naming beneficiaries for your non-probate assets. Some assets, like life insurance policies and retirement accounts, let you name a beneficiary to receive the asset when you die. These assets transfer directly to your beneficiary without having to go through probate.
• Setting up a POD or TOD account. Payable on death (POD) and transfer on death (TOD) accounts are bank or brokerage accounts in which you name someone to receive the contents of the account when you pass away. They transfer directly to your beneficiary — no probate necessary.

You can also bypass probate by making gifts to loved ones or charitable organizations during your lifetime. If you donate possessions or financial assets to someone else, these assets no longer belong to you or count as part of your estate when you pass away. This means that these gifts don’t have to go through probate.

Keep in mind that your gift or donation could be subject to a federal gift tax, depending on the size of the gift. It can be a good idea to discuss potential tax implications with an estate attorney before making a gift.

Simplify the probate process by making will

Probate often gets a bad rap, but it’s an important and necessary part of settling your affairs after you pass away. You can make the probate process easier for your loved ones by having a will.

With FreeWill’s free will-making tool, creating your will is simpler than ever. Simply fill out the guided questionnaire, print your documents, and execute them according to your state laws. In as little as 20 minutes, you can have a will of your own — completely free.