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What Is Probate?

3 min read
Oct 24, 2022

If you’re in the midst of estate planning, you want to know your instructions will be followed and your loved ones taken care of. That’s where probate comes in.

Probate is a legal process that occurs after a person has died. The deceased person’s will is validated by the court and their assets distributed accordingly. Although it’s common, many people aren’t familiar with or prepared for probate.

Keep reading to dig deeper into the definition of probate and gain a better understanding of probate law. We’ll help you understand how probate works, even if there isn’t a will, and what you can do to help ensure a smooth process.

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.1

“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.

If the decedent’s debts and remaining taxes are greater than their assets, their estate is considered insolvent. Rather than footing the bill, the executor may decide not to initiate probate. It saves on legal costs, but any remaining assets will go to the state to pay these debts. Beneficiaries named in the will can no longer claim inheritance when an estate is deemed insolvent.

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.

When is probate required?

Probate is a useful process, but it can take a long time and cost a lot of money in legal fees. So it’s a good idea to be aware of when probate is and isn’t required.

Most states have their own rules for triggering probate, but it’s usually tied to the total value of the estate. For example, in Illinois, an estate must go through probate if the total value of the assets exceeds $100,000.2

Estates that don’t meet the required value can often skip probate. In most states, benefactors simply need to submit an affidavit to claim their inheritance. The affidavit confirms their identity and the existence of a will.

How estate guidance can help you avoid probate

Probate can be avoided, or at least hurried along, with careful estate planning. Certain assets don’t need to go through probate court, including:3

  • Jointly-owned assets: If two or more individuals share ownership of property, when one co-owner passes away, the remaining co-owner(s) gains full ownership or a greater share of ownership.
  • Assets in trust: If money is placed in an account known as a revocable living trust, it can be set up to transfer the funds to a designated beneficiary when the trustee dies.
  • Life insurance, IRAs, pension plans, and more: These financial assets bypass probate because they’re contract-based. Each contract names a designated benefactor who receives the asset as soon as the terms of the contract are triggered.
  • Transfer-on-death accounts: Many banks and other financial institutions will allow you to name a beneficiary for your account. This lets them easily claim the account funds after the owner’s death without going through probate.

It may seem complicated or overwhelming, but estate planning isn’t something you need to do alone. Estate planning attorneys can answer your end-of-life questions and help you take some of the stress out of your financial life.

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1 “Probate: What It Is and How It Works With and Without a Will,” Investopedia     

2 "Illinois Compiled Statutes", Illinois General Assembly 

3 “Avoiding Unnecessary Probate Costs,” Investopedia

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