When Probate Is Needed
Probate is generally required for assets that were owned in the deceased person's name alone without a beneficiary or survivorship designation, such as:
- A house titled only in the deceased person's name
- Bank or investment accounts without POD or TOD beneficiaries
- Vehicles, valuables, and other personal property
- Business interests and money owed to the deceased
Assets that usually avoid probate:
| Asset | Why it passes outside probate |
|---|---|
| Life insurance and retirement accounts | Paid directly to named beneficiaries |
| POD or TOD accounts | Transfer directly to the named beneficiary |
| Joint tenancy with right of survivorship | Passes automatically to the surviving owner |
| Assets in a living trust | Distributed by the successor trustee |
| Transfer-on-death deeds (in states that allow them) | Real estate passes to the named beneficiary |
The Probate Process Step by Step
- File a petition with the probate court in the county where the deceased lived, along with the original will and a death certificate.
- Notify heirs and beneficiaries of the proceeding.
- Appointment of the personal representative. The court appoints the executor named in the will, or an administrator if there is no will, and issues letters testamentary or letters of administration authorizing them to act. A bond may be required.
- Notice to creditors. The representative notifies known creditors and usually publishes a notice; creditors then have a limited time, often a few months, to file claims.
- Inventory and appraisal of the estate's assets.
- Manage the estate: secure property, keep insurance current, collect income, and sell assets if needed.
- Pay valid debts, expenses, and taxes, including the final income tax return and any estate tax return.
- Accounting. Many courts require a report of all money received and spent.
- Distribute the remaining property to beneficiaries under the will or intestacy law.
- Close the estate with a court order discharging the representative.
The Executor's Duties
The personal representative is a fiduciary who must act honestly and in the best interest of the estate and its beneficiaries. That means keeping estate funds separate, keeping records, treating beneficiaries fairly, and following court deadlines. Executors are usually entitled to reasonable compensation, set by state law or the will.
How Long and How Much
- Timeline: Commonly 6 to 18 months; longer for complex estates, disputes, or estate tax issues.
- Costs: Court filing fees, appraisals, bond premiums, publication costs, and attorney and executor fees. Some states, such as California, set statutory fees based on the estate's value, while others require reasonable fees.
Simplified Procedures for Small Estates
Every state has some simplified process for smaller estates, such as:
- Small estate affidavits that let heirs collect property without opening probate, when the estate is below a set dollar limit
- Summary or informal probate with less court involvement
Dollar limits vary widely from state to state, and some exclude real estate.
Will Contests
Interested people can challenge a will in probate on grounds such as:
- The testator lacked mental capacity
- Undue influence or fraud
- The will was not properly signed and witnessed
- A later will revoked it
Deadlines to contest a will are short in many states, sometimes only a few months after the will is admitted to probate.
Estate Taxes
Most estates do not owe federal estate tax, because the federal exemption is very high — more than $13 million per person in recent years, and indexed for inflation. Estates above the threshold must file Form 706, generally within nine months of death (26 U.S.C. § 2010). Some states impose their own estate or inheritance taxes with much lower thresholds.
