# Probate: What It Is and How It Works With and Without a Will

![Probate](https://www.investopedia.com/thmb/k5joi6aCKnCVaUMuciP393s_u1c=/1500x0/filters:no_upscale():max_bytes(150000):strip_icc()/Term-Definitions_Probate-bf79cb6063454b90b59346dbb0cfd099.jpg)

*— Investopedia / Mira Norian*

## What Is Probate? Understanding the Basics

Probate is the process completed when a [decedent](https://www.investopedia.com/terms/d/decedent.asp#:~:text=%22Decedent%22%20is%20a%20legal%20term%20used%20to%20refer%20to%20a,in%20their%20wills%20and%20trusts.) leaves assets to distribute, such as bank accounts, real estate, and financial investments. Probate is the general administration of a deceased person's [will](https://www.investopedia.com/terms/w/will.asp) or the estate of a deceased person without a will.

An [executor](https://www.investopedia.com/terms/e/executor.asp) is commonly named in the will or an administrator, if there is no will, to complete the probate process. This involves collecting the deceased's assets to pay any remaining liabilities on their estate and distributing the assets to [beneficiaries](https://www.investopedia.com/terms/b/beneficiary.asp).

### Key Takeaways

*   Probate proceedings typically focus on the existence, authenticity, and validity of a will.
*   Probate can be initiated with or without a will, and determines heirs and settles debts.
*   A proceeding is usually essential when a deceased person’s remaining estate is of high value, even when there is a will.
*   Assets like life insurance, retirement accounts, and joint ownership may bypass probate.
*   Individuals can avoid exorbitant probate costs and complexities by having an easily authenticated will or a trust.

## How Probate Works With a Will vs. Without a Will

Probate is the analysis and transfer administration of [estate](https://www.investopedia.com/terms/e/estate.asp) assets previously owned by a deceased person. When a property owner dies, their assets are commonly reviewed by a probate court. This court provides the final ruling on the division and distribution of assets to beneficiaries. A probate proceeding will typically begin by analyzing whether or not the deceased person has [provided a legalized will](https://www.investopedia.com/articles/pf/08/what-is-a-will.asp).

In many cases, the deceased person has established documentation, which contains instructions on how their assets should be distributed after death. However, in some cases, the deceased does not leave a will. We've listed special circumstances that occur with both situations below.

## Factors for Probate Law

Probate law is the field of law that determines how an estate must be divided. Each state has laws and statutes to determine if and how an estate must be probated. Common factors include:

*   Size of the estate, the limits for which differ state by state.
*   Whether the estate includes real estate.
*   Whether or not there is a surviving spouse.
*   The number of motor vehicles in the estate.
*   The presence of a will, and the number of named heirs.
*   Any liens, debts, or taxes due on the estate.

## Probate With a Will

A deceased person with a will is known as a testator. When a testator dies, the executor or personal representative is responsible for initiating the probate process. The [executor](https://www.investopedia.com/terms/e/executor.asp) is typically a family member. The will can also provide details on a specified executor.

The executor is responsible for filing the will with the probate court. States can have different rules for the timeframe in which a will must be filed after death. Filing the will initiates the probate process, which is a court-supervised proceeding in which the authenticity of the will left behind is proven to be valid and accepted as the true [last testament](https://www.investopedia.com/terms/l/last-will-and-testament.asp) of the deceased. The court officially appoints the executor named in the will, which gives the executor the legal power to act on behalf of the deceased.

### The Executor

A will typically designate a legal representative or executor approved by the court. This person is responsible for locating and overseeing all the assets of the deceased. The executor has to estimate the value of the estate by using either the date of death value or the alternate valuation date, as specified by the [Internal Revenue Code (IRC)](https://www.investopedia.com/terms/i/internal-revenue-code.asp).

Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate. Probate for real estate may need to be extended to any county in which the real estate is located.

The executor must also pay off any taxes and debts the deceased owes from the estate. [Creditors](https://www.investopedia.com/terms/c/creditor.asp) usually have a limited time (approximately one year) from the date of death to make any [claims against the estate](https://www.investopedia.com/terms/n/notice-to-creditors.asp) for money owed. Claims that the executor rejects can be taken to court, where a probate judge will have the final say on whether or not the claim is justified.

The executor is also responsible for filing the final personal [income tax returns](https://www.investopedia.com/terms/i/individual-tax-return.asp) on behalf of the deceased. Any [pending estate taxes](https://www.investopedia.com/terms/e/estatetax.asp) can also come due within one year from the date of death. After the estate has been inventoried, the value of assets calculated, and debts paid off, the executor will seek authorization from the court to [distribute whatever is left of the estate to the beneficiaries](https://www.investopedia.com/terms/w/waiver-of-notice.asp).

If a deceased person’s estate is insolvent, which means that their debts outweigh their assets, an administrator will likely choose not to initiate probate. In general, individual states may have their own rulings on a [statute of limitations](https://www.investopedia.com/terms/s/statute-of-limitations.asp) for the processing of a will through probate. States can also have thresholds for probate filings.

> **Fast Fact**
>
> Trust funds can be orchestrated to pass immediately to designated inheritors upon death.

## Probate Without a Will

When a person dies without a will, he is said to have died intestate. An [intestate estate](https://www.investopedia.com/terms/i/intestate.asp) is also one where the will presented to the court has been deemed to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to state laws. If a deceased person has no assets, probate may not be necessary.

In general, a probate court proceeding usually begins with the appointment of an [administrator](https://www.investopedia.com/terms/a/administrator.asp) to oversee the estate of the deceased. The [administrator functions as an executor](https://www.investopedia.com/terms/a/administration-bond.asp), receiving all legal claims against the estate and paying off the outstanding debts.

The administrator is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. The [probate court](https://www.investopedia.com/terms/p/probate-court.asp) will assess what assets need to be distributed among the legal heirs and how to distribute them. The probate laws in most states divide property among the surviving spouse and children of the deceased.

Asset transfer to the government is known as [escheatment](https://www.investopedia.com/terms/e/escheat.asp). States typically have a timeframe for an heir who steps forward to claim assets.

### Spouses as Joint Property Owners

Community property laws can recognize both spouses as [joint property owners](https://www.investopedia.com/terms/j/jointownedproperty.asp) in an intestate proceeding. In effect, the distribution hierarchy typically starts with the surviving spouse. If unmarried or widowed at the time of death, assets are usually divided among surviving children. After a spouse and children are considered, other relatives may also be deemed appropriate for distribution.

Close friends of the deceased will not usually be added to the list of beneficiaries under a state’s probate laws for intestate estates. However, if the deceased had a joint account with [right of survivorship](https://www.investopedia.com/terms/w/with-benefit-of-survivorship.asp) or owned property jointly with another, the joint asset would automatically be owned by the surviving partner.

> **Fast Fact**
>
> If an individual has no will and no heirs, any remaining assets go to the state.

## Is Probate Always Required?

It is important to know whether probate is required following an individual's death. The probate process can take a long time to finalize. The more complex or contested the estate, the more time it will take to settle and distribute the [assets](https://www.investopedia.com/terms/a/asset.asp). The longer the duration, the higher the cost.

Probating an estate without a will is typically costlier than probating one with a valid will. However, the time and cost required for each are still high. Also, since the proceedings of a probate court are publicly recorded, avoiding probate would ensure that all settlements are done privately.

Different states have different laws concerning probate and whether probate is required after a testator's death. Some states have a specified estate value that requires probate. For example, probate laws in Texas hold that if the estate's value is less than $75,000, then probate may be skipped.

If an estate is small enough to bypass the probate process, then the estate’s assets may be claimed using alternative legal actions, such as an affidavit. Typically, if a deceased person’s debts exceed their assets, probate is not necessarily initiated, and alternative actions may be taken.

Some assets can bypass probate because beneficiaries have been [initiated through contractual terms](https://www.investopedia.com/articles/personal-finance/100616/do-retirement-accounts-go-through-probate.asp). Pension plans, life insurance proceeds, [401k plans](https://www.investopedia.com/terms/1/401kplan.asp), medical savings accounts, and individual retirement accounts (IRA) that have designated beneficiaries will not need to be probated. Likewise, assets jointly owned with a right of survivorship can bypass the probate process.

Another popular way to bypass probate is through [the use of a trust](https://www.investopedia.com/articles/04/121304.asp).

Overall, minimizing costs associated with the probate process can be prudent. Accumulated expenses include court fees, professional service hours, and administration costs. Having an easily authenticated will is one of the most common ways to quickly move through a probate process and efficiently distribute assets appropriately.

## How Much Does Probate Cost?

The cost of the probate process varies depending on your state and your lawyer. In some states, it is typical for lawyers to process estates for a flat or hourly fee. In others, they charge a percentage of the estate. You will also have to pay for any outstanding debts, court and filing fees, and the costs of notifying creditors about the probate process. In addition, you may also have to pay an inheritance tax. It is worth researching the probate costs for your state when you begin end-of-life planning.

## Which State Has the Best Probate Laws?

While probate laws vary from state to state, 18 states have adopted the Uniform Probate Code, which offers a standardized procedure for dividing a decedent's assets. The states that have adopted the UPC are Idaho, Alaska (1972), Arizona (1973), Colorado (1974), Minnesota, Montana, Nebraska, South Dakota, New Mexico, Utah, Michigan, Maine, Pennsylvania, Minnesota, South Carolina, Hawaii, North Dakota, New Jersey, and Massachusetts.  

## How Do I Avoid or Mitigate Probate?

Each state has its own limit to determine how much an estate must be to go through the probate process. Smaller estates may be able to go through a simplified probate process, or simply have heirs claim assets by affidavit. In addition, some assets—such as living trusts and 401(k) plans—do not need to go through the probate process. Since the probate process is expensive, it is worth researching your state's probate rules during your end-of-life planning.

## The Bottom Line

Probate law determines how a person's assets are divided after death. Each state has its own rules for the probate process, depending on the size of the estate, the type of assets, and the presence of a will. Since the probate process can be expensive, it is worth researching [the different ways to structure an estate](https://www.investopedia.com/terms/e/estateplanning.asp) to avoid it.  

> **Article Sources**
>
> 1.  Magnus Finance. "[Probate State by State Thresholds](https://www.mangusfinance.com/probate-state-by-state-thresholds/)."
>     
> 2.  Internal Revenue Service. "[Instructions for Form 706](https://www.irs.gov/instructions/i706)."
>     
> 3.  Internal Revenue Service. "[Publication 559, Survivors, Executors, and Administrators](https://www.irs.gov/publications/p559)."
>     
> 4.  Texas Constitution and Statutes. "[Estates Code Title 2. Estates of Decedents; Durable Powers of Attorney Subtitle E. Intestate Succession Chapter 205. Small Estate Affidavit](https://statutes.capitol.texas.gov/Docs/ES/htm/ES.205.htm)."
>     
> 5.  Trust and Will. "[Everything You Need to Know About Probate Fees](https://trustandwill.com/learn/probate-fees)."
>     
> 6.  Cornell Law School: Legal Information Institute. "[Uniform Probate Code](https://www.law.cornell.edu/wex/uniform_probate_code)."