Probate 101

Probate process by state: everything executors need to know

The probate process can be complicated, but we’re here to help. Learn the probate basics in our comprehensive guide, or click a state below for more specific information.

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Filing for probate? Choose a state

DEFINE PROBATE

What is probate?

Probate is the legal process that’s used to settle an estate after an owner’s passing. It’s a court-supervised proceeding that authenticates a Will, appoints or approves a named executor, and begins the process of distributing an estate’s assets and property to rightful heirs and beneficiaries. 

Most people who go through the probate process for the first time find themselves scratching their head, wondering what is probate court, and more importantly, do we really need to deal with this

Do you absolutely have to go through probate to settle an estate? The answer, in short, is maybe. Probate will almost always be necessary, especially if an estate owner doesn’t have a proper estate plan in place, but knowing how to navigate it will make the entire process much easier.

Not sure if you need to go through probate? Need help probating the estate of a loved one? Learn more about Probate with Trust & Will.

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PROBATE ASSETS

What are probate assets vs non-probate assets? 

Notice we said that probate will “almost always” be necessary. That’s true – it often is, but there are certain strategic ways you can set up your estate to largely (or entirely) avoid probate, saving your family and loved ones time, energy, cost, and stress after you pass away. 

First and foremost, certain types of assets will always avoid probate. For example, accounts that are titled “Transfer on Death (TOD)” or any policies (like life insurance) that have direct Beneficiaries listed directly go to the heirs they’re intended for, without having to pass through probate first. The same is true for any Trust-owned assets, as Trusts are able to avoid probate, too.

Probate assets include anything without a named Beneficiary or title, including:

  • Stocks

  • Bonds

  • Bank accounts that aren’t titled Transfer on Death (TOD)

  • Investment accounts that don’t have named Beneficiaries

  • Policies or accounts that aren’t titled Payable on Death (POD)

  • Real estate that isn’t titled jointly

  • Business interests

  • Personal property

  • Household items 

So, do household items go through probate, really? Keep in mind that anything without an outright title, named Beneficiary, or that’s not included as a Trust-owned asset, will go through the probate process.

PROBATE AVOIDANCE

How to avoid probate

Fortunately, there are a few strategic ways you can create your estate plan so it’ll avoid (or at least largely simplify) the probate process for your loved ones. One of the easiest and most concrete ways is by creating a Trust. 

A Trust is an estate planning tool that creates a fiduciary relationship between the creator (grantor or trustor), and whomever they name to manage the Trust (the trustee). The Trust holds assets for the ultimate benefit of one or more beneficiaries. Once a Trust is created, it must be funded (by transferring assets to Trust ownership).

Start your Trust with Trust & Will today. We even offer complete Deed Transfer Service so you can accomplish important steps like retitling and transferring real estate assets into the Trust for ultimate protection. 

Other ways to avoid probate include:

  • Gift assets to Beneficiaries while you’re still alive

  • Retitle bank accounts and other allowable assets to be TOD or POD

  • Limit the value of your estate

  • Retitle real estate assets to be jointly-owned with right of survivorship

Still need help with probate? Choose the plan that's right for you.

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PROBATE STEPS 

Probate process: a step-by-step guide


  • 1

    File petition & give notice

    File a request in the county the estate owner lived at the time of their passing. Acknowledge that you’ll be the executor & file the Will (if there is one) & death certificate. Notify any beneficiaries, creditors, & heirs that the estate is in probate.

  • 2

    Make an inventory of all assets

    Gather & appraise any probate assets to give to the court. Don’t forget about real estate, bank and retirement accounts, stocks, bonds, and valuables like art or jewelry.

  • 3

    Pay off all bills, debts & taxes

    Make sure the estate has the funds to pay bills & debts, decide how each will be handled, & then pay off outstanding claims. Pay taxes & file the last income tax return.

  • 4

    Make distributions & close estate

    Once all debts, claims & any expenses have been settled, remaining assets and property can be distributed to beneficiaries & heirs. Be sure to offer records of payments to the court so the estate can be closed.

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Commonly asked questions about probate

How long does probate take?
Probate can take anywhere from a couple months to a couple years or longer, depending on the state you live in and the complexity of the estate. How thorough an estate plan is can also make a difference. Click on the state you’re in above to get more specific information about the probate process and to learn how long probate takes and what to expect along the way.
Do I need an attorney for probate?
In most states, you do not need a probate attorney. Learn everything you need to know about starting the probate process for a friend or loved one’s estate with our Probate Services
When is probate required?
Probate is generally required if an estate’s value exceeds a certain, state-specified threshold. That amount will vary from state to state. Probate is almost always required if an estate owner dies interstate (without a Will or other estate planning in place). And remember, items and assets held within a Trust can avoid probate and pass directly on to the named beneficiary.
What if there is no Will for probate?
If there’s no Will in place, and in the absence of any other estate plan, assets from an estate will go through what’s known as an intestate administration. This process is handled by the probate court, where a judge will use state intestacy laws as guidance on how the estate should be passed on.
Can someone contest a Will?
In short, yes. Someone can always contest a Will. That said, the clearer your estate plan is, the less chance there is of someone being successful in overturning your stated wishes.

A Will can be contested if there’s concern the Testator (the person who wrote the Will) wasn’t stable or competent, or if there’s suspicion they were under duress at the time of signing. Wills can also be contested if they are found to be fraudulent or invalid.
What is the role of an executor?
An executor’s role is to manage the distribution of the estate. Individual responsibilities can vary slightly from state to state, but in essence, they will find and gather all assets the deceased person owned, pay off debts and taxes, and then distribute remaining assets to the rightful heir or beneficiary.