The Probate Process: How Does It Really Work?

When a family member or loved one passes away, their assets and financial responsibilities must be dealt with. Probate proves the validity of a will after death, identifies the property, pays debts and taxes and distributes the remaining assets to the heirs. The way probate law works is relatively simple. After a death, the appointed executor of the will must file papers notifying the probate court. These papers include documentation of the property, debt, and inheritance information for the deceased.

Do You Have to Go to Probate Court or Can It Be Avoided?
If the estate is worth less than $100,000 it does not typically have to go to probate court in most states. There is also a simple transfer procedure to the surviving spouse that does not have to go through probate. Probate law also allows for other ways to avoid going to court including:

Living Trust

Trust property is not considered to be part of the probate estate. A designated trustee owns the trust property and can transfer the property to family and friends as it was requested in the trust document. It is very similar to a will in the regard but does not have to be a part of probate.

Joint Ownership

When there is joint ownership of property, you can avoid probate when one of the joint owners dies. The property is simply turned over to the surviving owner without probate. There are several types of joint ownership that allow for this including joint tenancy with right of survivorship, tenancy by the entirety, and community property with right of survivorship.


Another way to avoid probate is to give away money and assets while you are still alive. If you no longer own it upon death, then the need to go to probate for it is no longer there.

Probate Law Varies from State to State
Some states have adopted the Uniform Probate Code (UPC). A national group of experts wrote the probate laws for UPC. UPC creates a simple process, particularly for the smaller estates. It also allows more flexibility for the executor of the will. However, there are variances in probate law in the states that have adopted UPC.

UPC includes three different kinds of probate. These are informal, unsupervised formal, and supervised formal. Informal does not include any court dates to complete the probate process. Unsupervised formal is very similar to traditional court, and supervised formal requires the courts to fully supervise the entire probate process. There are also a number of states that do not use UPC. However, most of them still adopt parts of their probate law from UPC.

Dealing with the Probate Process
When dealing with the probate process, the best thing you and your family can do is seek the knowledgeable advice of an attorney. Whether you are planning your own estate, or you are the executor of a will, seek experienced legal counsel to help advise you on your state’s laws and procedures.