The Probate Basics
By Thomas Hootman, J.D. | Legally reviewed by Steven J. Ellison, Esq. | Last reviewed June 17, 2022
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Probate is the legal process of ensuring that a last will and testament is valid. The term also refers more generally to the process of distributing a deceased person's property (their “estate").
This article embraces both meanings as it unpacks the fundamentals of probate. It will discuss:
- The basic steps of a probate proceeding
- Contesting a will during probate
- Avoiding probate
- The importance of having a will
What Happens in Probate?
A person who makes a will is known as a “testator." Their estate is distributed according to their instructions once the will is shown to be valid. A deceased person without a will is said to be “intestate." In this case, their estate is distributed according to state laws of intestate succession.
With or without a will, a deceased person's estate must be settled and distributed (“probated"). Though probate laws and terminology vary by state, the process typically involves the following steps:
- Petition to Probate. Upon the decedent's death, the process is initiated by filing a “Petition for Probate" with a local probate court.
- Swear In a Personal Representative. A personal representative is responsible for handling and distributing the estate. Before doing so, they swear under oath to the court that they will distribute the decedent's assets according to law. If appointed by the decedent's will, the representative is sometimes known as an “executor" and is empowered by “Letters Testamentary." If appointed by the court, they are sometimes known as an “administrator" and are empowered by “Letters of Administration."
- Give Notice to Interested Parties. Though local requirements vary, notice is meant to give individuals with a legitimate interest in the estate time to make their claim before the property is distributed. Public notice in a newspaper may be required to inform potential creditors. Similarly, individual notice may be required to inform anyone who could potentially inherit in the absence of a will.
- Determine the Value of the Estate. Before the estate can be distributed, it should be inventoried and appraised. Depending on the estate, this may be one of the most time-consuming responsibilities of a personal representative. An inventory should include real estate, personal property, bank accounts, etc.
- Pay Debts and Taxes. A decedent's estate is responsible for their debts. Particularly large estates may also be subject to the federal estate tax, as well as state-level estate taxes in the few states that impose them.
- Distribute Remaining Assets. Once debts and taxes are paid, the remaining property can be distributed. Again, this will be done according to the decedent's will if one exists or according to state laws of intestate succession if one does not.
Most probate proceedings go smoothly. However, wills are sometimes “contested," meaning their validity, authenticity, or instructions are challenged during probate.
Who might challenge a will? Anyone with an interest in the estate assets, including:
- Disinherited family members
- Creditors claiming unsettled debts
- Co-owners of estate property
How does someone challenge a will? Arguments raised in court might include:
- The testator was pressured or defrauded when making the will
- The testator was not of “sound mind" when making the will
- The will does not meet minimum requirements (e.g., it was not signed before witnesses)
- The will is superseded by a more recent will
- The will purports to transfer ineligible property (e.g., property owned subject to a right of survivorship or community property in a marriage)
Depending on the defects, if any, a contested will may be struck down entirely or partially. For example, a single provision that violates a real estate co-owner's right of survivorship is unlikely to invalidate the entire will. By contrast, a valid will with a more recent date is generally understood to completely replace older wills.
Avoiding Probate: Why?
The probate process exists to ensure that a deceased person's wishes are respected, that their legitimate debts are paid, and that their property is distributed systematically in the absence of a will. Many people think the process is always long, expensive, and to be avoided. This is only sometimes true.
The probate process can certainly be expensive. Costs might include fees for personal representatives, attorneys, and appraisers, as well as court costs. As with many legal proceedings, it can also be time-consuming, especially if there is a dispute or some of the estate needs to be liquidated to pay debts.
However, the time and money spent in probate depend greatly on the estate. Resources spent probating a relatively small estate can be minimal. The more extensive, valuable, or complex the estate, the more time probate might take. An estate planning or probate attorney can evaluate your circumstances and help determine the cost-effectiveness of “avoiding probate."
Avoiding Probate: How?
Probate is the process of distributing a decedent's property, and property generally cannot be removed from the estate once the owner dies. Therefore, most strategies for avoiding probate require some planning ahead. That said, there are four primary ways to avoid probate:
Joint Ownership With Right of Survivorship
Property can be owned individually or jointly. Some forms of joint ownership include a “right of survivorship." This refers to the automatic transfer of a deceased co-owner's property interest to surviving owners. The automatic transfer avoids probate. For more on this, see What's the Difference Between Joint Tenancy and Tenancy in Common? and Unmarried Partners Owning Property as Joint Tenants: Top 10 Reasons.
Only property within a deceased person's estate goes through probate. Therefore, transferring someone's property from their estate and into a trust prior to death avoids probate.
Note that this is only possible with living trusts, which transfer property immediately upon creation of the trust. By contrast, a testamentary trust is created by a will. Because the testator must die before the will is activated, testamentary trusts do not avoid probate.
Certain assets can transfer directly to a named beneficiary without having to go through probate. By naming beneficiaries ahead of time, you can ensure that they receive the benefit of life insurance policies, certain retirement accounts, payable-on-death accounts, transfer-on-death deeds, and the like without waiting for probate.
If you give something away while alive, it is removed from your estate. Therefore, the gift does not go through probate. However, in deploying this simple method of avoiding probate, make sure you are informed about gift taxes and exemptions. In addition to the federal gift tax, Connecticut imposes a state-level gift tax. No other state does.
Should I Have a Will?
The short answer is, “Yes." A last will and testament provides instructions on how your property and responsibilities will be handled when you die. Do not miss the opportunity to make these decisions yourself.
If you do not leave these instructions, your estate will be distributed according to laws of intestate succession. The result may or may not have pleased you in life. In addition to giving you and your loved ones some peace of mind, a well-drafted will also goes a long way in facilitating the probate process.
Many people think that drafting a simple will necessarily requires the help of an attorney. However, if you have a relatively simple estate, Findlaw's do-it-yourself estate planning tools can save you time and money.
Hiring an Estate Planning Attorney
Depending on the estate, probate does not have to be an arduously long or expensive process. There are also a number of legal strategies to avoid it. Whether you are a conscientious estate holder trying to keep your property out of probate or a personal representative trying to distribute a deceased person's estate, a local estate planning or probate attorney can provide valuable legal advice.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations