How does Probate work?
After the death of a property owner, known as the decedent, a probate court will review their assets and help manage their distribution. Typically, this involves validating and executing instructions left in the deceased person’s will. “Property” in this case refers not just to land and real estate, but also vehicles, capital, and any other assets owned by the decedent.
The person responsible for beginning probate is called the executor. Most wills name a specific executor — typically a family member or friend — who needs to initiate probate by filing the will with a court. This process needs to be done within a specific amount of time after the decedent's death. Each state has its own deadline for this process.
The executor works with the court to locate the decedent’s property and determine its total value. They must also resolve any outstanding debt or taxes owed by the decedent. If necessary, the executor can liquidate property to pay these claims. How long the probate process takes depends on the complexity of the will and the decedent’s estate. The more complicated it is, the longer probate will take and the more expensive it may become. Probate can also be prolonged if the will is contested.
Probate without a will
If the deceased didn’t leave a last will and testament, or if the probate court couldn’t validate the will, then their estate becomes intestate. In that case, an impartial administrator is appointed to distribute the assets. This process can involve finding and contacting any legal heirs, starting with surviving spouses, then children, and then additional family members. 1
Contacted heirs must step forward to claim their inheritance within a specific window of time, determined by state laws. Once that window closes, the state takes possession of the assets.
Probate without a will is a more expensive process. It costs the state time and resources — and grows more expensive the longer it takes. So although probate without a will is possible, it’s not ideal. Estate planning can help make the process as painless as possible.
Estate Planning
The living trust is often marketed as a vehicle that allows you to "avoid probate" upon your death.
MetLife, Online. October 24, 2022