Probate

What it means

Probate is a court process. Its job is narrow and often misunderstood: it establishes who is legally allowed to act for someone who has died, and it supervises the handing over of what that person owned in their name alone.

It is not a tax, it is not a penalty, and it is not something a family did wrong. It exists because a bank, a land registry or a motor vehicle agency cannot safely hand property to whoever turns up — so a court decides who is entitled to ask.

Why it matters

Whether probate is needed at all is usually the first question worth answering, because the answer changes everything that follows — how long it takes, what it costs, and who is allowed to sign.

A great deal of property never goes through it. Anything with a surviving joint owner, a named beneficiary, or a payable-on-death or transfer-on-death designation usually passes outside probate entirely, whatever the will says.

When you are likely to meet it

• When property was owned in the deceased person's name alone and nobody was named to receive it.
• When an institution asks for letters testamentary, letters of administration, or 'letters' of any kind.
• When somebody needs authority to sell, transfer or close something.

What happens, and in what order

Every state runs this differently and every state runs it in roughly this order. The steps are what a family will be asked to do; the timing is set by the state, and by how quickly each step is actually done.

1. Before anything is filed Somebody establishes whether probate is needed at all Property with a surviving joint owner, a named beneficiary or a funded trust passes without it, and an estate small enough may have a simplified route instead.
2. The petition is filed The will, if there is one, is lodged with the court and somebody asks to be appointed The court that hears it is the one for the county where the person lived, not where the assets are.
3. The court appoints Letters are issued, and only then does anybody have authority over the estate's property Institutions will want a certified copy, and each keeps the one it is given.
4. Immediately after appointment Notice goes to the beneficiaries and to creditors, and the claim period starts running
5. Within a period the state sets An inventory of what the estate holds, valued as at the date of death The valuation is what the tax and the beneficiaries' basis are both built on, so it is worth doing properly once.
6. While the claim period runs Debts, taxes and expenses are paid, in the order the state's statute sets Paying the wrong creditor first is the personal representative's own liability, not the estate's.
7. After the claim period has closed What is left is distributed to the people entitled to it
8. Last An accounting is filed and the court discharges the personal representative Until the discharge, the appointment and its duties continue.

Nothing here is a deadline. The clocks that do exist — the claim period, the tax returns, a spouse's election — are set by state law and start from different events.

How this varies by state

Every state runs its own probate system, with its own names, thresholds and shortcuts. Whether a particular estate needs it, and which version of it, is a state question.

Below is how the states Sahvelo has published describe it, in their own words, each linked to the guide that sources it.

Related terms

• AdministratorThe person a court appoints to handle an estate when there is no will, or no usable executor.
• Ancillary probateA second, smaller probate in another state, for property located there.
• Beneficiary designationA named person on an account or policy who receives it directly on death, without it passing through the will or probate.
• Beneficiary vs heirA beneficiary is named in a document. An heir is designated by statute when nothing names anybody.
• Contingent beneficiaryThe person who receives an account or policy if the first-named beneficiary has died or cannot take it.
• Death certificateThe official record of a death, issued by a state or local vital records office, and the document nearly every organization will ask to see.
• DecedentThe legal word for the person who died. It appears on almost every form you will fill in.
• EstateEverything the person owned at the moment they died, treated as one thing that has to be settled.
• ExecutorThe person named in a will to carry it out — once a court actually appoints them.
• Formal administrationProbate supervised by a judge, with petitions, notice and hearings. It is the default in some states and the fallback everywhere.
• Funding a trustActually moving property into a trust — retitling accounts and deeds into its name. An unfunded trust generally does not control assets that were never transferred into it.
• Informal probateProbate handled administratively by a court official rather than by a judge, where nobody is contesting anything.
• IntestateDying without a valid will, so the estate passes by the state's own rules rather than by anybody's wishes.
• Letters of administrationThe court document proving somebody has been appointed to handle an estate where there is no will.
• Letters testamentaryThe court document proving that the person named in a will has actually been appointed to act.
• Local administrationAdministration opened in a state that is not where the person lived, because they left something there — the second estate the first one does not mention.
• Muniment of titleA procedure in a few states where a will is admitted purely to prove ownership, with no executor appointed and no administration.
• Non-probate assetSomething that passes to a new owner automatically, without a court.
• Personal representativeThe neutral term for whoever is authorized to act for an estate, whether named in a will or appointed by a court.
• Pour-over willA short will used alongside a living trust, directing anything left outside the trust into it.
• Probate assetSomething owned in the deceased person's name alone, with nobody named to receive it.
• Probate bondAn insurance policy a court can require, protecting an estate against the person running it.
• Probate courtThe court that supervises estates. In many states it is a division of a general trial court and goes by another name.
• Revocable living trustA trust you create during your lifetime, keep control of, and can change or cancel at any time. Property held in it does not go through probate.
• Small-estate affidavitA sworn statement a state allows instead of a full probate case for an estate under its ceiling. What it is called, what it reaches and whether a court is involved differ by state.
• SuccessionLouisiana's word for the whole of what other states call probate — and for the estate itself.
• Summary administrationA shortened court procedure for smaller or simpler estates, with fewer steps and less supervision than full administration.
• Right of survivorshipA form of shared ownership where the survivor automatically takes the whole thing.
• Testamentary trustA trust created by a will, coming into existence only when the person dies.
• Transfer-on-death deedA recorded deed naming who receives real property on death, with no probate and no present interest for the person named.
• Uniform Probate CodeA model act many states adopted in part — which is why their probate rules rhyme without matching.
• WillA written document saying who should receive what, and who should be in charge of seeing that it happens.

Sahvelo guidance that uses this

• Do I need probate?
• Small estate procedures