What if there is no will, or the estate is contested, or it’s complicated?

First, What is Probate?

Chances are, if you’re reading this or this article has turned up in your searching, you already know what probate is. Let’s define it quickly.

“Probate is the legal process undertaken by a court to oversee the distribution of assets for someone’s estate after they die.”

If we’re catching you before probate is a reality for you or a loved one that’s great news. We’d love to help you avoid a lengthy or difficult probate process. If you’re already expecting to have to navigate a probate process, let’s get you prepared for what that might entail.

Is Probate Always Required?

No, not all estates require a probate process. Even in situations where there is no will, factors like the size of the estate at the time of death, state laws, the availability of an administrator/executor and the type of assets in the estate can all determine if probate is required.

Exceptions: Many states have “small estate” exemptions, which allow families to skip full probate if the estate’s value is below a certain threshold (for example: $25K, $50K, or even higher depending on the state).

Check out some additional details, including individual state thresholds, on small-estates.

When Should Probate Be Started?

If it’s determined that probate is required you may have fewer than two weeks, several years, or no time limit to file for probate after a person dies.

Probate laws vary by state, so the deadline depends on where the deceased person resided. The quickest way to determine the deadline is to search for rules in your state, or reach out to an attorney to ask.

For example, in California you have 30 days. The deadline is important because the consequence for missing a state-mandated deadline may be having waived your right to be appointed executor.

Learn More → Check out our Probate FAQ for a whole bunch of common questions and answers around this process.

Probate Timelines Are Different For Everyone

How long does probate take? The short answer is, it depends. Probate can be skipped entirely for certain individuals, wrap up in a few short weeks, or drag on for more than a year.

There are no universal timetables for probate because it’s impacted by so many variables. Probate length is driven by things like: the complexity of the estate, the status of the person’s will when they die, the state they live in, the specific personal situations with their family and any beneficiaries. Any or all of these things can all have an impact on the length of time it takes for probate.

For a person with a simple estate, a revocable trust combined with a pour-over will, and no complex family situations there may be no probate at all.

For someone with a large or complicated estate, or if a probate case falls to a court with a high caseload or staffing issues, these processes may be further delayed.

What Are the Steps in the Probate Process?

In general, the steps of a probate process begin once a petition is filed with the court to start the process. After the petition is filed the general steps are as follows:

Things the Court Will Do

Notify interested parties
The court will typically notify any heirs, beneficiaries, and known creditors. In some instances they may also publish a local notice to alert any unknown claimants.

Validate the will
The court will review any wills (if they exist) to confirm validity and legality. If there’s any contestation to the will there may be a hearing.

Formally appoint the executor
A judge will formally appoint the executor/administrator for the estate and provide official documentation to allow them to act on behalf of the estate.

Close the estate
Finally, once all of the bills are paid and assets are distributed the executor files a final accounting with the court, showing all receipts, payments, and distributions.

Things You (The Executor/Administrator) Will Do

Identify assets
The executor will be responsible for identifying all of the assets and determining the associated values. These details are filed with the court by the appointed executor (so after the petition has been filed to start probate).

Manage and protect the estate
During probate the executor has to safeguard any assets. This includes things like keeping accounts active, securing property, and maintaining insurance (for homes, cars, etc).

Pay debts and taxes
The executor will have to manage any valid creditor claims including any outstanding bills, mortgages, and funeral. All of these types of bills or debts are paid from the estate. In addition, tax returns will need to be filed and any taxes paid.

Distribute assets
Once debts and taxes are settled the remaining assets are distributed according to the will’s instructions. If there’s no will each state has specific guidance about distribution (who’s first in line to receive assets, etc.).

What is a Small-Estate Probate?

To keep things simple for a smaller estate, some US states offer a path for “summary probate” or “small-estate probate” - the exact rules differ by state or province, so we recommend checking out the specific statutes for your state.

What are the Steps for a Small-Estate Probate?

First you’ll need to determine if the estate is eligible within your state. If the estate’s value is close to the limit, you can sometimes adjust non‑probate assets (for example - retitle a vehicle into joint ownership) to lower the value and bring it under the threshold. Be careful of tax and legal implications if you do go this route.

Otherwise the typical steps are:

Gather consent from any heirs
File with the probate court and pay any fees
Notify heirs of the filing
Pay any valid creditor claims within the deadline
Obtain the discharge order from the court and distribute assets.
File final paperwork to close the estate.

Check out some state-by-state summaries for the rules around small-estate probate here.

What Can I Do to Avoid Probate?

Depending on your individual situation there are a number of approaches that can help avoid probate for your estate. Keep in mind that there is no single approach that can protect everyone since estates are unique. If you’re reading this and thinking ahead to your own arrangements, the best advice we can offer is to plan ahead as much as possible.

The two most common pieces of advice are: talk to a professional to help with pre-planning, and make sure whatever you do have in place is up-to-date.

Investigate options like:

Identifying and listing out all of your assets.
For example, with a 401k the easiest way to manage inheritance is to use the provider’s tools to list a beneficiary. Keep detailed records of any assets and beneficiaries.
Figure out if your estate will qualify for a small-estate probate process now or after you die.
Getting that paperwork in order will make the process quick and less expensive for your executor or administrator
Look into your eligibility for a revocable trust (and pour-over will) and update the titling for an assets to the trust
This option may have an upfront cost but it’s one increasingly common option to completely avoid probate for your beneficiaries.
Consider giving anything in excess now.
The smaller your estate, the less there is for a probate court to have to distribute.

Additional Resources to Learn More About Probate

Important Note

We at Good Grief are not lawyers, just Death Care Technology folks trying to help humans with death literacy and navigating the logistics of loss. If you need specific advice about your individual situation we recommend you do specific research for your state and/or reach out to a legal professional.

How Long Does Probate Take?