Probate Court, Explained

What is probate court?

Probate court is the legal entity that oversees the probate process, which is the legal process of distributing your estate after you die. To ensure the process runs smoothly and your affairs are properly handled after you pass away, the probate court is responsible for:

• Validating your will
• Approving a personal representative (known as an executor or administrator) to manage your estate
• Naming guardians for your minor children or pets (if you list someone in your will for these positions, they’re considered first)
• Ensuring your outstanding debts are paid
• Choosing beneficiaries if you didn't have a valid will
• Making sure your assets are distributed properly — either according to the instructions in your will, or according to state law if you didn’t have a will
• Handling the process if someone contests (or challenges) your will

There are instances where your local probate court may be involved in your estate even before you pass away. For example, the court may be responsible for setting up a conservatorship if you become incapacitated or can no longer manage your assets on your own.

What happens during probate court?

If you’ve been chosen as the executor of someone’s estate, you’ll have to work with the probate court to complete the probate process. This court process generally includes the following steps:

1. Petitioning the court

If you’ve been nominated as executor of a will, you’ll need to petition the court to begin the probate process. To do this, you’ll submit an application (often called a probate petition form), which you can get from your local court or county office, or from an estate attorney.  

After you submit the form, the probate court will schedule a set of hearings. The process is generally divided into two hearings, but this may vary depending on state laws where the deceased lived, their estate’s complexity, or if their will is contested or deemed invalid.

2. First hearing

During the initial hearing, the probate court judge will first verify the will and determine its validity. Once they decide the will is valid, they’ll formally appoint you as executor and issue you a letter of testamentary. A letter of testamentary proves you have the legal authority to manage the deceased’s estate.

After this hearing, you can then start settling the estate. This usually includes:

• Filing taxes on estate assets
• Paying any outstanding debts, like a car payment or credit card debt
• Contacting beneficiaries or other stakeholders
• Distributing assets according to the last will and testament

After these tasks are completed, you’ll petition for final distribution of the estate and the court will schedule a second hearing.

3. Second hearing

In the second (and often final) hearing, the court will confirm that the estate is settled. The judge will verify that the estate's debts have been paid, its taxes filed, and its assets distributed to beneficiaries. Once confirmed, the judge will then close out the estate, which ends the probate process.

Probate court is governed by state and local law. This means some probate laws — like certain deadlines, or rules about community property — are different depending on where you live.

Probate court with a will

If the deceased had a will, the probate court will determine its validity before the process can move forward.

Once the will is deemed valid, the court will appoint an executor to manage the deceased’s estate according to their will. If they named an executor in their will, this will be the first person considered for the role. If they didn’t nominate an executor, the court will choose someone — often the deceased's next of kin.

Once approved, the executor can begin managing the estate.

Probate court without a will

If the deceased didn’t have a will or the court decides their existing will is invalid, the process shifts.

The court will first assign an estate administrator to manage the probate process. An administrator’s role is similar to that of an executor, but they’re appointed by the court instead of  nominated by the will-maker.

The probate court will then determine who should receive the deceased’s assets using a set of rules called intestate succession laws. The administrator will act under the court’s direction to transfer and distribute the assets according to these laws. Usually, the deceased’s spouse is first in line to receive assets, followed by children, parents, and siblings.

How long does probate court take?

Probate court can take a few months to a few years to complete. How long the process takes is affected by several factors, like:

• The court’s current timeline and caseload
• The state where the deceased lived
• The size and complexity of their estate
• Whether they had a will
• If their will is contested or deemed invalid
• If their heirs or next of kin are hard to find

Is a lawyer needed for probate court?

If the will-maker had a simple estate, it’s possible that you, as the executor, can handle the probate process on your own. However, you may want to consider hiring an estate attorney if:

• The estate is large or complicated.
• There’s a chance the will could be contested in court — for example, by contentious family members.
• There’s confusion surrounding the will. Perhaps some wording is unclear, multiple wills exist, or there’s no will at all.

When in doubt, it’s best to consider hiring an estate attorney, or at least consult with one on the specifics of the situation before making a decision.

Simplify the probate process by making a will

The probate court’s role is to make sure an estate is properly distributed. Having a valid, up-to-date will makes the process easier for everyone involved. If you need a last will and testament, FreeWill can help. In just 20 minutes, you can create your will today — completely free.

Already have a will? It may be time for an update. You can also check out our list of 10 essential estate planning documents you need to make sure all of your affairs are in order.