{"id":287059,"date":"2016-04-04T11:02:20","date_gmt":"2016-04-04T16:02:20","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/estate\/probate\/the-probate-basics.html"},"modified":"2025-07-24T13:39:00","modified_gmt":"2025-07-24T18:39:00","slug":"the-probate-basics","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/estate\/probate\/the-probate-basics.html","title":{"rendered":"The Probate Basics"},"content":{"rendered":"\n
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The Probate Basics<\/h1>\n\n
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\n By Thomas Hootman, J.D.<\/a> | Legally reviewed by Steven Ellison, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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Probate is the legal process of validating a last will and testament, paying debts and taxes, and distributing a deceased person’s property.<\/p>\n\n <\/div>\n\n\n\n

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This article discusses the fundamentals of probate. It will address:<\/p>\n

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  1. The basic steps of a probate proceeding<\/li>\n
  2. Contesting a will during probate<\/li>\n
  3. Avoiding probate<\/li>\n
  4. The importance of having a will<\/li>\n<\/ol>\n

    What Happens in Probate?<\/h2>\n

    A person who makes a will is known as a \u201ctestator.” Their estate is distributed according to their instructions once the will is shown to be\u00a0valid<\/a>. A deceased person without a will is said to be \u201cintestate<\/a>.” In this case, their estate is distributed according to\u00a0state laws of intestate succession<\/a>.<\/p>\n

    With or without a will, a deceased person’s estate must be settled and distributed (\u201cprobated”). Though probate laws and terminology vary by state, the process typically involves the following steps:<\/p>\n

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    1. Petition to Probate<\/b>.\u00a0Upon the decedent’s death, the process is initiated by filing a \u201cPetition for Probate” with a local probate court.<\/li>\n
    2. Swear In a Personal Representative<\/b>.\u00a0A\u00a0personal representative<\/a>\u00a0is 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 \u201cexecutor” and is empowered by \u201cLetters Testamentary<\/a>.” If appointed by the court, they are sometimes known as an \u201cadministrator” and are empowered by \u201c<\/span>Letters of Administration<\/a>.”<\/span><\/li>\n
    3. Give Notice to Interested Parties<\/b>.\u00a0Though 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.<\/li>\n
    4. Determine the Value of the Estate.<\/b>\u00a0Before 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.<\/li>\n
    5. Pay Debts and Taxes<\/b>.\u00a0A\u00a0decedent’s estate is responsible for their debts<\/a>. Particularly large estates may also be subject to the\u00a0federal estate tax<\/a>, as well as\u00a0state-level estate taxes<\/a>\u00a0in the few states that impose them.<\/li>\n
    6. Distribute Remaining Assets.\u00a0<\/b>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\u00a0state laws of intestate succession<\/a>\u00a0if one does not.<\/li>\n<\/ol>\n

      Contested Wills<\/h2>\n

      Most probate proceedings go smoothly. However, wills are sometimes \u201ccontested,” meaning their validity, authenticity, or instructions are challenged during probate.<\/p>\n

      Who might challenge a will?<\/a>\u00a0Anyone with an interest in the estate assets, including:<\/p>\n