What is Probate?

A lawyer argues in probate court

Probate is a court-supervised process for gathering a deceased person’s assets, paying outstanding debts, taxes, and expenses, and distributing the remaining assets to the deceased person’s beneficiaries.

There are various types of probate depending on the deceased person’s estate plan, the value of assets and how they are titled, and where the deceased person lived.

The cost and complexity of probate differs – even within the same state – based on these factors.

Types of probate

The exact rules and process for probate varies from state to state. As a generalization, while the names may differ, many states have some combination of the below types of probate:

  • Formal probate administration: the most common form of estate administration in which the court oversees the entire process of gathering the assets, paying debts, and distributing remaining assets to beneficiaries
  • Small estate administration: a special type of probate for estates that fall under a certain value, generally with simplified and expedited requirements compared to formal probate administration
  • Ancillary estate administration: takes place when a deceased person owns property in a state other than the one in which he or she lived

Where does probate take place?

Regardless of the type of probate, the probate process generally takes place within the county court where the deceased person lived, or, in the case of ancillary estate administration, the county in which the deceased person’s assets in that state are located.

How does probate work?

State law, the type of probate, and whether the deceased person had a will determine the overall probate process and rules. In formal probate administration for a person who died with a will, the major milestones are as follows:

  1. The estate is opened by filing a petition with the local county court. This may be called a petition for probate or a petition for administration, depending on the state.
  2. The court appoints someone to act as personal representative or executor for the estate. Unless unfit or unable to serve, this is the person named in the will.
  3. The personal representative notifies the beneficiaries in the will of the estate administration. In some cases, the personal representative must also notify the heirs who would inherit if the deceased person did not have a will.
  4. The personal representative submits to the court and certain beneficiaries an inventory of the deceased person’s assets subject to probate, any real property being protected by homestead or other exemptions, and any other real property owned by the deceased person located outside the state.
  5. The personal representative provides notice to creditors of the estate proceeding and settles or refutes creditor claims, paying from the estate assets.
  6. The personal representative files and pays the estate income tax return and any estate tax return.
  7. The personal representative prepares and submits to the court a final accounting of the estate and petitions for discharge (i.e., closing the estate). Once approved, the personal representative distributes the remaining assets according to the provisions of the will.

Much of the responsibility for coordinating the probate process falls on the personal representative or executor of the estate. You can learn more about this role and the detail behind the major milestones in “What Does an Executor Do?

How long does probate take?

Probate may be as quick as a few months, but more often probate for someone who died with a will takes six months to a year. Probate for someone who died without a will can take 2+ years.

Why does probate take so long?

The time required to navigate probate varies greatly depending on a number of different factors:

  • the type of proceeding: small estate administration is generally faster than formal estate administration, and estates that require ancillary estate administration usually take even longer
  • the state where the proceeding is taking place: different states have different notice period requirements. For example, in Florida, creditors have up to 3 months to establish a claim against the deceased person’s estate, whereas in New York, creditors have 7 months
  • the county court where the proceeding is taking place: certain county courts regularly have more demand than they do capacity
  • the size and complexity of the estate: larger, more complex estates generally take longer to administer than smaller ones
  • whether the beneficiaries and heirs contest or cooperate with the proceeding: beneficiaries and heirs can waive certain notice and other requirements, which speeds up the process

How much does probate cost?

There are three major cost buckets in probate:

  1. Court filing fees
  2. Attorney fees
  3. Executor or personal representative compensation

Each of these costs may vary depending on a number of different factors, including:

  • The state and county in which the probate proceedings are taking place
  • The size of the estate
  • The complexity of the estate assets
  • The extent to which the attorney or other advisors are involved in the administration of the estate
  • Whether the person died with or without a will
  • Whether any beneficiaries or other interested persons contest or challenge the will

It is not uncommon for probate costs to amount to 3-6%+ of the estate.

Is probate bad?

Probate helps ensure that the deceased person’s wishes are respected, the rights of individuals close to the deceased person are protected, and creditors have the opportunity to collect on debt owed to them. These are all good intentions.

However, many people regard the time, cost, and public record of probate as undesirable. Some choose to create a revocable living trust, which generally avoids much of probate and all that comes with it.

Can you do probate without a lawyer?

No state requires that you use a lawyer to probate the estate. However, it’s generally a good idea to engage a lawyer or other advisor who is familiar with your state or county’s probate process, particularly if this is your first time navigating probate.

Engaging a lawyer to assist with the probate of an estate does not need to be an all or nothing deal. You can work with the lawyer to carve out certain pieces of the probate process for which the lawyer will be responsible and others that you will handle directly, and you can base the lawyer's compensation on this division of labor.