Probate FAQ: What It Is, How It Works, and How to Avoid It
What is the point of probate?
Probate exists to ensure the deceased’s debts are paid and property is transferred correctly.
The main goals of probate are to:
Prove a will is valid
Appoint a legal representative
Settle the estate
The probate framework is designed to protect creditors, ensure a fair distribution of assets, prevent fraud, and minimize disputes among heirs.
Fun Fact: Only about a third of the world’s countries use a formal probate system. Probate exists in Common Law societies not Civil or Islamic Law Countries.
Do I need to go through probate?
If the person left property in their name only and no legal shortcut exists (beneficiary, trust, joint ownership), probate is usually required. Even if someone has an uncontested will but property and assets are solely in their name the estate may need to go to probate.
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). See a complete list of the states and the threshold amount.
Tip: The best way to avoid probate is to plan ahead. Set things up in advance with a living trust, joint ownership, or by naming beneficiaries directly on your accounts.
Why would I want to avoid probate?
We’re not trying to scare anyone but the truth is probate can be an enormous headache. It’s time consuming, it can be expensive (particularly when a lawyer has to get involved), it can be stressful, it takes longer to distribute estate assets (your younger sibling may really need that used car) and it’s a public process.
If Uncle Larry was sitting on an undisclosed fortune, how his millions in gold doubloons were distributed becomes a matter of public record.
Do I need a lawyer for probate?
You might. This depends largely on the complexity of the estate and how well documented the will is. It’s best to do your research for your individual state to review the rules.
And shop around. If you happen to be caught in the aftermath of the recent loss of a loved one, it’s hard to feel like you have the capacity to spend your time comparison shopping for lawyers, but finding a reputable probate lawyer will be important to keep the process simple and keep costs from creeping up.
The relationship with this lawyer could last for years so it is important to find someone who is a fit for your needs and style.
Get a referral from a friend or family member.
Beware of any lawyers who push you to involve them in tasks that you could easily handle on your own. (If you’re not sure where to start - that’s what Good Grief is here for!)
Can I sell my Dad’s car before probate?
This depends. If the car was still titled to your Dad when he died, this asset is considered part of the estate and will need to be included in the probate filing. In general, be careful spending any cash (even if you’re a legacy contact through the financial institution) or selling assets. Keep detailed records and receipts to prevent any issues when things are communicated in court.
For instance, with a car, even if you’re named as the executor, there may be specific legal proofs that show your entitlement to sell the vehicle. And if there is more than one executor, all named executors with all the required personal proofs of identification would be required to be present at the time of sale prior to any agreed payment being made.
When do I need to start the probate process? How soon after someone dies?
If it’s determined that probate is required you may have fewer than two weeks, 30 days, or longer. Most U.S. states require probate to be opened “promptly” after death, but the definition varies. In many states, an executor has about 30 days after the death to file the will with the local probate court.
The quickest way to determine the deadline is to search for rules in your state, or reach out to an attorney to ask. This deadline is important because the consequence for missing the deadline may be having waived your right to be appointed executor.
How long does probate take?
As little as a few weeks to months or even over a year or more. The length of time depends on the complexity of the state, the details of the will, and sometimes even the status of the court itself (understaffed or overburdened courts will take longer).
Check out our longer post on “How Long Does Probate Take?” for a more in-depth post about the steps included in the process.
What if there’s no will to use for probate?
If someone dies without a will, they are said to have died “intestate” and probate is still required. The court will appoint an administrator or executor to manage the estate and distribution of any assets (typically a spouse or child) and will follow the state-specific rules for the distribution of assets to any heirs or beneficiaries.
If no eligible heirs exist the assets are distributed to the state.
If there are no assets to distribute, a probate process may still be necessary to formally close the estate.
How are probate expenses handled?
For the majority of expenses related to the probate process, any expenses are either deducted from or reimbursed from the value of the estate. Expenses for probate can include:
A filing or petition fee
Letters of administration / testamentary letters
Court costs
Executor expenses or fees
Optional legal expenses for any probate, estate, appraisal fees, or tax attorneys
Tip: In many places, the executor can request reimbursement for out‑of‑pocket expenses but the amount will typically require court approval.
If probate is required, what happens if the probate process is never started?
If probate is never started, the estate is typically stuck in limbo. The result is that assets can’t be distributed or sold, heirs can’t access property, debts can pile up, and eventually the state may take control.
How do I know where to file the probate petition?
Things can get complicated in modern society where loved ones often live in different states than we do. A probate petition is usually filed in the county where a person was living when they died. If it is unclear where someone was living you can evaluate criteria like: where did they own property or where were they registered to vote.
If someone owned property in more than one state it’s possible that probate will have to take place in more than one state (this process is called Ancillary Probate and you can read more about it here).
How can I avoid going through probate?
The easiest way to avoid probate is by planning ahead. Logistically that often means creating a trust to hold your assets rather than a will. Some other ways to avoid or reduce the complexity of the probate process include:
Reducing the size of your estate by making gifts to family now.
Creating a POD (Payable On Death) account, also known as a Totten Trust, or an account that pays out to a beneficiary upon your death.
Transfer On Death (TOD) Deeds
Use Joint Tenancy to protect real estate assets
For Married Couples, Community Property laws apply in some states
Life Insurance
Ultimately the key to keeping your estate out of probate is a matter of planning ahead. By thinking through and implementing the best options for your situation now, your loved ones won’t be stuck navigating a complex process once you’re gone.
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.