What Happens During Probate?

Probate is the legal process that is used to administer certain property after a person dies. This can involve confirming a will, giving someone authority to handle the estate, addressing debt, and distributing the property to the people who are entitled to receive it.

The process varies by the state and estate itself; a person with a will may need probate while a person without one may also need a court proceeding. Having a will does not automatically avoid probate.

How does probate begin?

If a person leaves a will, it is submitted to the appropriate court; the court may recognize the will and give the person named as executor authority to act. If there is no will, the court may appoint someone to administer the estate under the specific state law.

That authority does matter; being named in a will or being the closest relative doesn’t mean someone can access accounts or transfer property. The person handling the estate may need documents from the court to show a bank or other institution they are authorized to act.

What happens to the property?

The person administering the estate needs to identify the property that belongs to it, protect the property, and finally determine its value. This can include bank accounts, homes, vehicles, and personal belongings. They may need to prepare an inventory report for the court depending on the state and type of proceeding.

Not everything a person owns is entirely part of the probate estate. As discussed in What Does a Will Actually Control?, an asset with a beneficiary designation or a right of survivorship may pass outside probate. How the asset is titled and whom the documents name are exceedingly important.

What happens to debts?

Property is not handed out as soon as the estate is opened. The person administering must address valid debts, taxes, and any required expenses. Creditors have an opportunity to make claims against the estate under the applicable state laws.

Only after those obligations are addressed can the probate property be distributed according to the will or the state’s intestacy law. Distributing assets too early can create problems if the estate still owes money.

Does probate always take a long time?

There is no single timeline; the process depends on the state’s procedures, what property the person owned, whether debts or taxes need attention, and whether anyone disputes the will or the administration. Some states offer simpler procedures for smaller estates while a complicated estate may require more work even when the family agrees about who should inherit the estate.

Probate is sometimes described as a process that should be avoided at all costs. The work of identifying property, paying obligations, and transferring what remains still has to be done in some capacity, even when assets pass through a trust instead of probate.

Tyler ThompsonAuthor