Skip to main content

Probate

Probate is the legal process for proving a will valid or invalid, appointing an executor, and distributing estate assets according to the will or state law.

Probate overview

What is probate?” is a common question when dealing with a loved one’s estate or their assets. While probate can be complex, this guide will help you better understand the concept by detailing the steps involved. These include the effects of a will, the role of an executor, how property is handled, and what can be done to avoid probate.

The probate process

Probate involves proving a the validity of deceased person’s last will and testament, often in a court of law. The usual process looks like this:

  • An individual files a petition with the probate court to admit the will to probate and appoint an executor.

  • Notice of the petition is given to all heirs and beneficiaries.

  • The executor informs the estate's creditors of probate proceedings.

  • The executor takes inventory of all estate assets.

  • The executor settles the decedent's debts and taxes using money from the estate. This person may be permitted to sell estate assets to repay debts and taxes.

  • The deceased individual's property transfers to beneficiaries.

How a will impacts probate

A will is essential to the probate process, since probate deals with proving the validity of a will. A person who dies without a will is considered to have died “intestate.” When this occurs, a representative is appointed to decide what will happen to their assets.

The executor's role in probate

An executor is the person tasked with carrying out the terms of a will and handling estate affairs. They’re frequently a family member or close friend of the deceased.

Most wills nominate at least one executor, and often name a secondary person in case the primary executor is unable or unwilling to perform the executor's duties. The probate court considers this nomination when officially naming the executor.

An executor has several responsibilities:

  • Identifying, gathering, and protecting the decedent's assets

  • Settling the decedent's debts

  • Distributing any remaining assets according to the will's instructions

These duties may seem overwhelming, but an executor doesn’t have to complete them alone. Many US states actually require the executor to enlist a lawyer's help. Even if this aspect is not a legal requirement in your state, seeking counsel can ensure an executor meets all legal obligations.

Property subject to probate

Most property will be subject to probate. Typical assets distributed during probate include the following:

  • Bank accounts
  • Investment accounts
  • Property
  • Vehicles
  • Business interests
  • Stocks

However, there are exceptions. According to New York probate attorney Michael S. Haber, "Assets that are held jointly with right of survivorship and those for which there is a named beneficiary are distributed outside of probate." These assets might include property deeded to the decedent and a surviving spouse, or money in a 401(k) account that names the spouse as a beneficiary.

Avoiding probate

Probate is an expensive and lengthy process that typically takes between 9 months and 2 years, according to Massachusetts estate planning attorney Susana Lannik.

For at least some of this time, the deceased's assets cannot be used by their loved ones. Probate is also a public process which can hinder the privacy of a grieving family. For all these reasons, probate is a process best avoided.

Lannik says the best way to avoid the probate process is "appropriate planning and proper documents." While noting that every case is different, she recommends her clients have the following:

  • A durable power of attorney
  • A health care proxy
  • A living trust — this legal document is similar to a will but does not require probate

These measures will help individuals avoid probate if they pass away or become incapacitated.

Dealing with probate law can be daunting, but with an experienced probate lawyer's assistance, you can confidently navigate through this process.