What Is Probate and How Does It Work? A Guide to the Process

Probate is the court-supervised process of validating a person’s will after they die. The process includes locating the deceased’s remaining assets, settling outstanding debts and allocating the estate’s property to the designated heirs. State probate laws vary, but the process is very similar across the country, with lawyers doing most of the heavy lifting. It’s helpful, though, to understand the process, whether you’re writing your will or you’re an executor or beneficiary.

For more hands-on guidance with estate planning, consult a financial advisor.

What Is Probate and How Does It Work?

In simple terms, probate is the method by which a deceased person’s will is processed.

This typically involves estate planning attorneys and a court proceeding for review of the will, and appropriate distribution of inheritances. The probate process can take some time, depending on the size of the estate.

Most wills name an executor who oversees the probate process. This person typically has 30 days from the date of the will owner’s death to file the document with the local probate court.

If the decedent died without a will or didn’t clearly identify an executor in one, the probate court will appoint an administrator to oversee the probate process. This role often falls on the next of kin.

However, a named executor or appointed administrator can always decline the role. In these cases, the court turns to someone else. This person overseeing probate must prove to the court that the will is valid.

When Is Probate Necessary?

Probate is not always a requirement to transfer property.

Several states’ laws indicate that property below a certain amount can pas] on to heirs without probate or through a simplified version of it. But if an estate exceeds that value, then probate must occur.

If a person dies without a valid will in place, this is intestate. To handle such situations, each state has intestate succession laws that govern the distribution of inheritance based on family relationships. For example, intestate succession usually includes spouses, parents, siblings, grandparents, cousins and others.

Certain accounts with listed beneficiaries don’t need to go through the probate process either:

The same applies to insurance policies. These funds transfer directly to the named beneficiary following the death of the account or policyholder.

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How to File and Validate a Will

Most state laws require an executopr to file a will with the local probate court as soon after the death of the decedent as possible. This person may also need to file the death certificate and a petition to open probate at the same time.

Next, a probate court judge determines whether the will is legally valid. This usually involves a hearing in which all beneficiaries listed in the will have the right to review the document and accept or object to their roles under it. The court decides how to move forward in cases when a party contests it.

But how does the probate court determine whether the will is valid? In many cases, self-proving affidavits help validate and finalize wills. The will’s grantor, along with witnesses, sign off on these. In most cases, these documents carry enough weight for the court to initiate the probate process.

Once that happens, the executor receives and signs letters of authority or letters of administration. This means the executor formally agrees to oversee the probate process and manage the estate.

In some states, the executor must also post bond. This is an insurance policy that protects beneficiaries in the event the executor intentionally or unintentionally makes a costly mistake during the probate process.

Identifying Assets for Probate

Once the probate process begins, the executor must identify all of the decedent’s assets and their value. This usually means diving into banking statements, investment account statements and tax documents.

Some states require executors to provide the court with a document that details the decedent’s assets, their value and notation on the applied value. This determines the date of death values.

The executor may also need to take physical possession of property such as fine art and vehicles. Taking physical possession of real estate isn’t necessary.

However, the executor must ensure they pay property taxes, insurance and mortgage payments throughout the probate process. The decedent’s estate can pay these and all other debts.

Contacting Creditors and Paying Off Debt

An executor must also identify and notify the decedent’s creditors. These creditors typically have a limited time in which they can make claims against the decedent’s estate. These time frames vary by state.

However, an executor can challenge these claims. The creditor may then petition the court to make a decision in the matter.

In either case, the estate must pay off official debts. These may include medical bills and other expenses the decedent couldn’t cover before death. Since the decedent’s estate settles these debts, significant debt can reduce the assets available to heirs.

Filing the Decedent’s Final Taxes

Unfortunately, death doesn’t clean your slate with Uncle Sam. Because of this, an executor must file and pay off any of the decedent’s final taxes with estate funds.

The federal estate tax can reach up to 40%, and some states also impose their own, as well.¹ At the federal level, though, the 2026 estate tax only applies to estates that are worth $15 million or more.²

Estate taxes are typically due within a year following the owner’s death. However, you can reduce the size of your estate during life to transfer property tax-free.

Distributing Property From an Estate

An executor usually needs to provide the probate court with documentation detailing every transaction he or she engaged in during the probate process thus far. These filings would also detail the exact value of the remaining estate. However, some states allow the executor to waive this requirement if all beneficiaries believe it’s not necessary.

After the court confirms all debts and pays all taxes, it can proceed with distributing the remaining estate according to the will.

If a person died without a will, the court typically divides assets and property among immediate family members. Someone who dies without a will has passed away intestate. The surviving spouse, if any, typically takes priority.

How to Avoid Probate

The probate process can chip away at the decedent’s estate before distributions to the heirs. However, there are several estate planning strategies you can use while alive to shield property and avoid the probate process.

Use Payable-on-Death and Transfer-on-Death Accounts

Payable-on-death (POD) accounts and transfer-on-death (TOD) accounts allow individuals to pass assets directly to beneficiaries without going through probate. These designations offer a simple, cost-effective way to streamline estate planning and provide immediate access to assets for beneficiaries.

A POD account is typically used for bank accounts, such as savings, checking and certificates of deposit. The account holder designates a beneficiary, and upon their death, the funds transfer directly to the named individual.

A TOD account is commonly used for investment assets like stocks, bonds, and brokerage accounts. Some states also allow TOD designations on real estate deeds and vehicle registrations. These accounts function similarly by allowing the asset owner to name a beneficiary who automatically receives the asset upon their passing.

Revocable Living Trusts

Another common strategy is transferring property to a revocable living trust.

These trusts can hold various assets, including homes, vehicles and valuable possessions. When property transfers into the trust, it no longer belongs to the estate and does not go through probate.

A trust document outlines the distributions of assets among heirs. The trust also requires a trustee to manage and distribute property. Typically, the grantor serves as the trustee during their lifetime and appoints a successor trustee to take over upon their death, at which point the trust becomes irrevocable.

Gifting Assets During Your Lifetime

Gifting property during one’s lifetime is another way to reduce probate assets.

In 2026, individuals can give up to $19,000 per recipient without triggering gift tax concerns.³ For example, a person with three children could gift each $19,000 in cash or property without tax implications.

If a gift exceeds $19,000 to a single recipient, you deduct the overage from the lifetime estate and gift tax exemption, which is $13.99 million in 2025. For example, gifting $30,000 to a child for a home down payment would reduce the lifetime exemption by $11,000. Generally, only gifts exceeding the exemption require filing Form 709, and estate or gift taxes are only due when you fully exhaust the lifetime exemption.

What Happens if Someone Contests a Will?

Not every probate case proceeds exactly as the deceased person intended.

If an interested party believes a will is invalid, they may ask the probate court to review it before the estate is distributed. A challenge does not automatically stop probate, but it can delay parts of the process while the court considers the claims.

A person generally cannot contest a will simply because they are unhappy with the outcome. Instead, the challenge typically must be based on a legal argument, such as allegations that the person lacked the mental capacity to make the will, was subject to undue influence or that the document was not executed according to state law.

When you contest a will, the court may review evidence like medical records and witness testimony before deciding whether the document is valid. If the challenge is unsuccessful, probate usually continues under the existing will. If the court finds the will invalid, it may recognize an earlier valid will or distribute the estate according to the state’s intestacy laws if no prior will exists.

Will contests can extend the probate timeline and increase costs because the estate may incur additional legal and court expenses while you resolve the dispute. Those costs are typically paid from estate assets, which can reduce the amount ultimately available for beneficiaries.

While you cannot prevent every dispute, keep estate planning documents current, follow state execution requirements and discuss your estate plan with family members when appropriate. This may help avoid probate after your death.

Bottom Line

Probate may sound intimidating, but it shouldn’t be a daunting process. A detailed will that designates an executor can ensure the proper transfer of your property to the right heirs after you die. The probate process isn’t always necessary, however. It’s important to seek help from a lawyer to see how state law affects probate in your area. Seeking a financial advisor for guidance around estate planning can also protect your property from probate and taxation.

Tips on Estate Planning

The probate process can hold up the distribution of your assets for as long as a year. With good estate planning, though, you can help your heirs avoid this delay. A financial advisor can help you plan your estate, as well as manage your wealth. SmartAsset’s free tool matches you with vetted financial advisors in your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
A revocable living trust can help secure your property from probate, but it’s not the only kind of trust around. Look into how different trusts work to see which kind is right for you.