What Is Probate? A Complete Guide to the Probate Process

Probate is the legal process through which a deceased person's estate is properly distributed to heirs and beneficiaries. During probate, a court validates the will (if one exists), appoints an executor or administrator, identifies and inventories assets, pays outstanding debts and taxes, and finally distributes remaining assets according to the will or state law.

What Does Probate Mean?

The word "probate" comes from the Latin word "probatum," meaning "a thing proved." In legal terms, probate refers to the court-supervised process of:

• Proving that a deceased person's will is valid
• Inventorying all property and assets owned by the deceased
• Appraising the value of assets
• Paying any outstanding debts, taxes, and expenses
• Distributing remaining assets to rightful heirs

Probate ensures that a person's final wishes are carried out properly and that creditors have an opportunity to collect what they're owed before assets pass to heirs.

When Is Probate Required?

Probate is typically required when a person dies owning assets solely in their name. Common situations that trigger probate include:

Assets That Usually Require Probate

• Real estate owned solely by the deceased
• Bank accounts without beneficiary designations
• Investment accounts without transfer-on-death designations
• Vehicles titled only in the deceased's name
• Personal property of significant value
• Business interests

Assets That Usually Avoid Probate

• Life insurance policies with named beneficiaries
• Retirement accounts (401k, IRA) with beneficiaries
• Joint bank accounts with right of survivorship
• Property held in a living trust
• Real estate owned as joint tenants with right of survivorship
• Payable-on-death (POD) bank accounts

The Probate Process: Step by Step

Understanding each phase of probate helps you know what to expect. While timelines vary by state, the basic process follows these steps:

Step 1: Filing the Petition

The process begins when someone (usually the executor named in the will) files a petition with the probate court in the county where the deceased lived. This petition asks the court to:

• Accept the will as valid (if one exists)
• Appoint an executor or administrator
• Open a formal probate case

Step 2: Notifying Interested Parties

The court requires notification to:

• All heirs and beneficiaries named in the will
• Potential heirs under state law (if there's no will)
• Known creditors
• The general public (usually through a newspaper notice)

Step 3: Inventorying Assets

The executor must identify, locate, and value all assets owned by the deceased. This includes:

• Bank and investment accounts
• Real estate
• Vehicles
• Personal property (jewelry, art, collectibles)
• Business interests
• Outstanding debts owed to the deceased

Step 4: Paying Debts and Taxes

Before any assets can be distributed to heirs, the estate must pay:

• Funeral and burial expenses
• Outstanding medical bills
• Credit card debts
• Mortgages and loans
• Federal and state income taxes
• Estate taxes (if applicable)

Step 5: Distributing Assets

Once debts are paid and the waiting period for creditor claims has passed, the executor can distribute remaining assets according to:

• The instructions in the will, or
• State intestacy laws if there's no will

Step 6: Closing the Estate

The final step involves the executor filing a final accounting with the court showing all financial transactions, debts paid, and distributions made. Once approved, the court officially closes the estate.

How Long Does Probate Take?

Probate timelines vary significantly based on several factors:

Average timelines by state:

• California: 12-18 months
• Texas: 6-12 months
• Florida: 6-12 months
• New York: 9-15 months
• Pennsylvania: 9-12 months

Types of Probate

Not all estates go through the same probate process. Many states offer different procedures based on estate size and complexity:

Formal Probate

The full court-supervised process described above. Required for:

• Large or complex estates
• Contested wills
• Estates with significant debts

Informal Probate

A simplified process with less court oversight, available when:

• The will is uncontested
• All heirs agree on distribution
• The estate is relatively straightforward

Summary or Small Estate Probate

Many states allow expedited procedures for small estates. Thresholds vary:

• California: Under $184,500 (as of 2024)
• Texas: Under $75,000
• Florida: Under $75,000
• New York: Under $50,000

Ancillary Probate

Required when the deceased owned real property in a state other than their primary residence. A separate probate proceeding must occur in each state where property is located.

Probate With and Without a Will

Testate (With a Will)

When someone dies with a valid will (called dying "testate"):

• The will names an executor to manage the estate
• Assets are distributed according to the will's instructions
• The court ensures the will is valid and properly executed

Intestate (Without a Will)

When someone dies without a will (called dying "intestate"):

• The court appoints an administrator (usually a close relative)
• Assets are distributed according to state intestacy laws
• Distribution typically follows this order:
  1. Surviving spouse
  2. Children
  3. Parents
  4. Siblings
  5. Extended family

Common Probate Terms Explained

Understanding probate terminology helps you navigate the process:

How Much Does Probate Cost?

Probate costs vary widely but typically include:

Court Filing Fees

• Range from $50 to $1,200+ depending on the state and estate size
• California uses a percentage of estate value
• Many states have flat fees

Attorney Fees

• Hourly rates: $200-$500+ per hour
• Flat fees: $2,500-$10,000+ for simple estates
• Percentage of estate: 2-5% in some states (California, Florida)

Executor Compensation

• Typically 1-5% of estate value
• Some states set statutory rates
• Family members often waive compensation

Other Costs

• Appraisal fees
• Accountant fees
• Surety bond premiums
• Publication fees for legal notices

Can You Avoid Probate?

Many people want to help their heirs avoid probate. Common strategies include:

Living Trusts

Transfer assets to a revocable living trust during your lifetime. Assets in the trust pass directly to beneficiaries without probate.

Beneficiary Designations

Name beneficiaries on:

• Life insurance policies
• Retirement accounts
• Bank accounts (POD)
• Investment accounts (TOD)

Joint Ownership

Hold property jointly with right of survivorship. When one owner dies, the property automatically passes to the surviving owner.

Gifting

Give assets away during your lifetime to reduce the estate that must go through probate.

What If You Need Money During Probate?

Waiting months or years for an inheritance can create financial hardship. If you're an heir waiting for probate to complete, you have options:

Inheritance Advance

An inheritance advance (also called a probate advance) lets you access a portion of your inheritance before probate closes. Key features:

• Not a loan – You sell part of your future inheritance at a discount
• No monthly payments – Repayment comes from the estate
• No credit check – Approval based on your inheritance, not credit score
• Fast funding – Receive cash in as little as 24-48 hours

This option is ideal for heirs who need funds for immediate expenses like:

• Funeral costs
• Bill payments
• Medical expenses
• Mortgage or rent
• Legal fees

Learn more about how inheritance advances work →

Frequently Asked Questions

What is probate in simple terms?

Probate is the legal process a court uses to validate a will, pay the deceased person's debts, and distribute their remaining assets to heirs. It ensures everything is handled properly and legally.

Does every estate go through probate?

No. Small estates may qualify for simplified procedures, and assets with beneficiary designations (like life insurance and retirement accounts) bypass probate entirely. Estates held in trusts also avoid probate.

How do I know if an estate is in probate?

Probate records are public. You can check with the probate court in the county where the deceased lived. Many courts now have online databases where you can search for cases.

Can probate be avoided entirely?

Yes, with proper estate planning. Using living trusts, beneficiary designations, and joint ownership can help assets pass directly to heirs without court involvement.

Who pays probate costs?

The estate pays probate costs before assets are distributed to heirs. If the estate lacks sufficient funds, heirs may need to cover certain expenses.

What happens if you can't afford probate?

Some states waive fees for small estates. Heirs may also be able to front costs and be reimbursed from the estate. If significant assets are involved, some attorneys work on contingency or offer payment plans.

Get Help Navigating Probate

The probate process can feel overwhelming, especially while grieving. If you're waiting for an inheritance and need financial assistance now, we can help.

Get Your Free Quote → and find out how much of your inheritance you can access before probate closes.