# Probate Court Explained: What Passes Through and How It Works

![Probate Court](https://www.investopedia.com/thmb/I_Fst-Zr0ffpUDNl_evC0UpSRJ8=/1500x0/filters:no_upscale():max_bytes(150000):strip_icc()/probate-court.asp-Final-4dca23141edc45cbb92bd11418f13e6b.jpg)

*— Investopedia / Yurle Villegas*

## What Is Probate Court?

Probate court oversees the execution of wills, estate management, and conservatorships, ensuring that deceased individuals' debts are settled and assets distributed. It's important to understand probate processes as they determine the legitimacy of wills, appoint estate executors, and manage asset distribution, especially when no will exists. Familiarize yourself with how courts handle both contested documents and intestate succession.  

### Key Takeaways

*   Probate court manages the execution of wills, estates, conservatorships, and guardianships, ensuring debts are paid and assets are distributed properly.  
    
*   Probate is required for assets solely titled in the deceased's name, but assets like IRAs with designated beneficiaries can avoid this process.  
    
*   The probate court process involves filing a petition, appointing an executor, notifying beneficiaries and creditors, and distributing assets.  
    
*   Avoiding probate can be achieved by creating a living trust, naming beneficiaries on accounts, and joint ownership of assets.

## Probate Court Explained: Roles and Processes

The term "probate" is used to describe the legal process that involves the handling of the estate of a recently deceased person. Broadly, the role of the court is to make sure that their debts are paid and their assets are distributed to the correct [beneficiaries](https://www.investopedia.com/terms/b/beneficiary.asp), according to the decedent's wishes as detailed in a will.

Probate is multifaceted in that it refers to the overall legal process of dealing with a deceased person's assets and debt, the court that manages the process, and the actual distribution of assets.

Individual states have rules concerning probate and probate courts. Some states do not use the term "probate" but instead refer to a surrogate’s court, orphan’s court, or chancery court. It's important to review the laws regarding probate in the state in which a will is to be probated before death (if you're creating a will) and after death (if you are a beneficiary or executor).

Many local courts provide probate instructions. The New York Unified Court System, for instance, lets people search by county and court type to start probate.  

## Assets Subject to Probate: What Needs to Go Through the Process

Probate is usually necessary for property that is titled only in the name of the person who passes away. For example, that might include a car or real estate. It's also usually necessary for an interest in any property that is owned as [tenants in common](https://www.investopedia.com/terms/t/tenancy_in_common.asp).

### Assets That Don't Require Probate

Here are some of the assets that don't need to be probated, according to legal information expert, AllLaw.

*   IRA or 401(k) retirement accounts with designated beneficiaries
*   Life insurance policies with designated beneficiaries
*   Pension plan distributions
*   Assets assigned to a living trust
*   Funds in a [payable-on-death (POD)](https://www.investopedia.com/terms/p/payableondeath.asp) bank account and payable-on-death U.S. savings bonds
*   Securities designated as transfer-on-death (TOD)
*   Wages, salary, or commissions owed to the deceased (up to an allowable limit)
*   Vehicles intended for immediate family (under state law)
*   Household goods and other items intended for immediate family (under state law)

## Navigating the Probate Court Process: Steps and Considerations

A formal probate process involves specific, usually straightforward steps. Issues that may arise during the process can lengthen the time it lasts until it is closed by the court.

*   Probate is initiated when a person files a petition for probate with the state's probate court system. The petition is normally filed by the executor of the deceased's will or by a member of the deceased's family.
*   The person filing the petition must also file the original will and a copy of the certified death certificate.
*   In the initial hearing, the probate court appoints the [executor](https://www.investopedia.com/terms/e/executor.asp) for the deceased's estate. The executor (or administrator, if there's no will) is responsible for distributing the deceased's estate to the proper beneficiaries, among other administrative duties. The court provides the executor with Letters of Testamentary (or Letters of Administration). They give the executor the authority to pay bills, sell assets, and perform other tasks. 
*   Before accepting the Letters and performing their duty, the executor may need to post bond (to protect the estate from any adverse consequences of their actions).
*   A second hearing may be required if any objections concerning the will are raised.
*   The executor then proceeds to notify those to whom the deceased owed money (creditors), notify beneficiaries, inventory the deceased's assets, pay outstanding bills, sell assets if necessary to pay what's owed, pay taxes, and file a final tax return.
*   Once those tasks are completed, the executor distributes the remaining assets to the beneficiaries, according to the will. 
*   The probate court oversees the executor's activities and handles issues that may arise. For instance, if the executor objects to a claim, the court will hear the evidence and make a ruling. 
*   The executor normally must provide an accounting of exactly how the estate was handled. Once this is approved by the court, it closes the probate process.

An informal probate process, also called summary probate, that requires less court oversight can be used if the estate is small, the will is simple, all parties are in agreement with it, and no objections are raised. The will and death certificate still must be filed in this instance.

### Probate Court Without a Will

When a person dies with no will, the probate court distributes that person's assets to their [next of kin](https://www.investopedia.com/terms/n/next-of-kin.asp), according to the relevant state's probate laws. This is known as the law of [intestate](https://www.investopedia.com/terms/i/intestate.asp) succession. It outlines the distribution of assets among surviving spouses, children, grandchildren, siblings, parents, aunts, uncles, and other relatives.

> **Important**
>
> With or without a will, going to probate court is likely required to settle a decedent's affairs. However, there are ways to simplify the probate process prior to death, including creating a living trust, naming beneficiaries clearly on all investment, bank, and retirement accounts, and establishing joint ownership for certain assets.

## Understanding Probate Court Costs: Lawyers, Fees, and Timeframe

A probate lawyer is often hired to help deal with the intricacies of probate. Other costs of probate can include court filing fees, costs for publishing a death notice, and an executor's fees.

If the estate is large and complicated, the assistance of an accountant may be needed. The deceased's estate lawyer may also need to be involved.

Costs will mount the longer the probate process takes to complete. In general, the process can take six months to a couple of years.

## Strategies to Avoid Probate Court: How to Simplify Estate Transfers

Understandably, people want to avoid or [shorten the probate process](https://www.investopedia.com/terms/w/waiver-of-notice.asp), if possible. This can be done by setting up a [living trust](https://www.investopedia.com/terms/l/living-trust.asp), assigning your assets to it, and designating beneficiaries for those assets. A living trust is an estate planning tool that can help you avoid the usually lengthy, sometimes costly, and always public nature of probate.

Designating beneficiaries in account paperwork, such as life insurance or retirement plans, keeps financial assets out of probate. Funds then go straight to beneficiaries after your death.

Additionally, consider giving tax-free gifts during your lifetime to avoid probate for money left to beneficiaries, as defined by the [Internal Revenue Service (IRS)](https://www.investopedia.com/terms/i/irs.asp). In 2024, the maximum allowable amount is $18,000 ($17,000 in 2023) per person before a gift tax return must be filed.

## What Happens at a Probate Court Hearing?

At a probate court hearing, the judge will list the responsibilities of the executor of the will, including contacting any beneficiaries and creditors, appraising the deceased's assets, and paying any outstanding creditors and taxes. Usually, at the second court hearing, the judge will ensure all these items have been done and close out the estate so that the transfers of money and other assets in the estate may begin.

## Do You Have to Go to Probate Court When Someone Dies?

Each state has specific probate laws to determine what's required. Unless someone has no assets or descendants when they die, probate is usually still required in order to settle the deceased's remaining affairs, including debts, assets, and paying their final bills and taxes.

## How Do You Avoid Probate Court?

While it can be tricky to avoid probate court completely, some ways to avoid probate include creating a living trust, naming beneficiaries clearly on all investment, bank, and retirement accounts, and establishing joint ownership for certain assets.

## How Long Does Probate Take?

The length of time varies depending on the deceased person's assets, the complexity of their will, and other factors. For example, the executor may have to liquidate assets to pay creditors. Selling a home or other property for this purpose can take time. Generally speaking, probate can go from a few weeks to a few years.

## How Do You File an Objection in Probate Court?

The probate court website usually has forms available to file an objection, whether it's an objection to tampering with the will, forgery, or something else. These forms must be submitted at the beginning of the process.

## The Bottom Line

Understanding the probate court process is crucial for effectively handling the legal matters of a deceased person's estate. Whether a will exists or not, probate court oversees the distribution of assets, payment of debts, and resolution of legal challenges. Executors or family members typically initiate probate, which may involve hiring a probate lawyer, settling creditor claims, and filing necessary documents. By planning ahead, such as creating a living trust and clearly designating beneficiaries, you can potentially minimize the burdensome aspects of probate, making it easier on loved ones during a difficult time.

> **Article Sources**
>
> 1.  Consumer Financial Protection Bureau. "[When a Loved One Dies and Debt Collectors Come Calling](https://www.consumerfinance.gov/consumer-tools/educator-tools/resources-for-older-adults/financial-security-as-you-age/when-a-loved-one-dies-and-debt-collectors-come-calling/)."
>     
> 2.  American Bar Association. "[The Probate Process](https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/the_probate_process/)."
>     
> 3.  New York State Unified Court System. "[Probate - When a Person Dies with a Will](https://www.nycourts.gov/courthelp/WhenSomeoneDies/probate.shtml)."
>     
> 4.  Social Security Administration. "[Program Operations Manual System (POMS): SI 01110.510 Sole vs. Shared Ownership](https://secure.ssa.gov/apps10/poms.nsf/lnx/0501110510)."
>     
> 5.  AllLaw. "[What Assets Must Go Through Probate?](https://www.alllaw.com/articles/nolo/wills-trusts/what-assets-go-through-probate.html)"
>     
> 6.  Cornell Law School, Legal Information Institute. "[Intestate Succession](https://www.law.cornell.edu/wex/intestate_succession)."
>     
> 7.  Internal Revenue Service. "[Frequently Asked Questions on Gift Taxes](https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes)," Select "How many annual exclusions are available?"