Probate

Probate is the judicial process by which a deceased person's will is proved, a representative is authorized to act for the estate, creditors are given an opportunity to be paid, and the remaining property is transferred to the people entitled to it. Where there is no will, the same court process runs under the state's intestacy statute instead, and the term is still used loosely to cover it.

There is no federal probate law and no single national rulebook, which is the most important thing to understand before reading anything else about it. Every state runs its own system, in courts variously named probate, surrogate's, orphans' or chancery courts. The Uniform Probate Code is a model act prepared by the Uniform Law Commission rather than a statute in force anywhere by itself; Cornell's Legal Information Institute lists eighteen states as having enacted it in whole or in part. It is worth knowing because it supplied much of the vocabulary that other states subsequently borrowed, so the terms below are broadly shared even where the rules behind them are not.

🔑 Probate governs the residue, and that is the framing that makes the whole subject tractable. Most household wealth leaves an estate without touching a court. A retirement account or life insurance policy pays whoever is named on its beneficiary form. Property held jointly with a right of survivorship passes to the surviving owner by operation of the title. Assets retitled into a funded trust pass under the trust's terms. What is left over is what probate administers, which in many estates means a solely titled bank or brokerage account, a car, and personal belongings. Probate is not a penalty and not evidence that anything was done wrong; it is simply the default path for whatever had no other one. Its significance in a particular estate is therefore a question about the other three channels rather than about the court.

One qualification on that, because it is a common trap. A beneficiary form left blank, or naming someone who died first with no contingent beneficiary, usually sends the asset to the estate, which lands it in probate after all. That is reliably true of an individual retirement account. It is generally not true of a workplace plan such as a 401(k) for a married participant, because federal law lets the plan default to the surviving spouse, and most plans do. Collapsing those two cases is one of the more consequential errors in this area.

The vocabulary, and whose vocabulary it is. The Uniform Probate Code's umbrella term for the person who administers the estate is personal representative, defined to include "an executor, administrator, successor personal representative, special administrator and a person who performs substantially the same function under the appropriate governing law." Within that, an executor is the person the will nominated, and an administrator is appointed by the court where there is no will or where the nominated person cannot or will not serve. Nomination is not appointment: under the Code a person must be "appointed by order of the court or registers, qualify and be issued letters", and "administration of an estate is commenced by the issuance of letters." Those letters, often called letters testamentary or letters of administration, are the document a bank will actually ask to see, and until they exist nobody has authority to act.

⚠️ It does not follow that the court appoints everyone a will names. Guardianship of a minor child runs on a different track: in Uniform Probate Code states the appointment is the parent's rather than the court's, made "by will or other signed writing", and it becomes effective on whichever comes first of the appointing parent's death, an adjudication that the parent is incapacitated, or a physician's written determination that the parent can no longer care for the child, subject to a process by which others may object. So "the will nominates and the court appoints" describes the personal representative accurately and the guardian inaccurately.

What the process actually does. Broadly, a petition is filed with the will; the court determines whether the will is valid and appoints the personal representative; that person inventories the estate, notifies known creditors and usually publishes notice to unknown ones, pays valid debts, expenses and taxes, files any final income tax return and a fiduciary return if the estate had income, accounts to the court, and distributes what remains. The Uniform Probate Code offers an informal or unsupervised route, conducted without notice to interested persons by a court officer, alongside formal and supervised proceedings for contested or complicated estates. Whether an unsupervised route is the default, or exists at all, is one of the things that differs by state rather than being a general feature of probate.

Where numbers are demanded and cannot honestly be given. Five things about probate vary too much for a national answer, and each is routinely stated as though it did not.

Cost. A small number of states set statutory fee schedules for the personal representative or the attorney; most do not, and instead allow reasonable compensation. The widely repeated claim that probate consumes a particular percentage of an estate has no national basis and should not be relied on for any particular state.

Duration. It is measured in months rather than weeks nearly everywhere, and beyond that the range is wide. A contested will, an illiquid asset, or a required creditor period can extend it considerably.

The creditor window. Claims arising before death are barred unless presented within a defined period, but both the length and the way it interacts with notice are set by state law. Maine's version, to take one enacted example, bars claims not presented within the earlier of nine months after death or the period fixed by the notice given. Do not assume that figure travels.

Small-estate routes. Most states offer a simplified procedure, sometimes by affidavit and without a full administration, for estates below a threshold. The thresholds differ enormously between states, and so does what counts toward them.

Privacy. Probate is generally a public proceeding, and a will admitted to probate generally becomes a public record. How much detail is practically accessible, and whether inventories are filed publicly, differs.

One structural point that does travel. Real property is administered where it sits. Owning a house or land in a second state can require its own separate proceeding there, in addition to the main administration in the state of domicile. That is a large part of why probate avoidance is worth more to someone who owns property in two states than to someone who owns one home.

1. A petition is filed in the county where the deceased person was domiciled, usually with the original will.

2. The court determines validity and appoints a personal representative, and issues letters. Nobody has authority to move estate assets before that point.

3. The estate is inventoried, and known creditors are notified with notice published for unknown ones.

4. A creditor window runs, of a length set by state law, during which claims must be presented or be barred.

5. Debts, expenses and taxes are paid, including any final income tax return and a fiduciary return if the estate earned income.

6. What remains is distributed under the will, or under the intestacy statute if there is none, and the administration is closed.

A hypothetical, showing what probate costs a family in practice, which is usually access rather than money. Marisol dies leaving four things: a retirement account naming her son, a jointly held house with her sister, a savings account with a payable-on-death registration naming her son, and a brokerage account in her sole name. The first three never enter probate. Her son claims the retirement account and the savings account on production of a death certificate, and the house passes to her sister by operation of the title. The brokerage account is a different matter: nobody can sell or transfer anything in it until the court has admitted the will and issued letters, which takes months. If Marisol's funeral costs and final bills were expected to come out of that account, the family has a liquidity problem the plan did not anticipate, even though nothing about the estate is complicated or contested.

Change one fact and the whole picture moves. Had the brokerage account also carried a transfer-on-death registration, probate would have had nothing substantial to administer and the delay would have been irrelevant. That is why the practical work of probate avoidance is done on account paperwork rather than in a courtroom.

Pros

• It resolves title conclusively. A distribution made under a court order is hard to unwind later, which protects the people who receive the property.
• It is the forum for genuine disputes. Questions about capacity, undue influence or a contested document have somewhere to be decided.
• The creditor window works in the estate's favor too: claims not presented in time are barred, which lets the administration be closed with finality.
• Court supervision is a real safeguard where the personal representative is inexperienced, in conflict with the beneficiaries, or not trusted by them.
• It supplies a default. Somebody is appointed and something happens even if the deceased person left no instructions at all.

Cons

• It takes months rather than weeks nearly everywhere, so assets inside it are not available to people who may need cash immediately.
• It is generally public, so a will admitted to probate usually becomes a matter of record.
• It costs money in court fees and, commonly, professional fees, and the amount is not predictable from any national figure.
• Real property in a second state can require its own separate proceeding there.
• Nothing can be moved until letters are issued, which is a hard stop rather than an inconvenience.
• The rules that matter most are state rules, so general guidance about probate is unusually likely to be wrong where you live.