• Skip to main content
  • Skip to primary sidebar

Legal Consumer BLOG

Empowering Consumers Since 2006

Home » Inheritance Law » What Is Pro­bate and How Does It Work?

What Is Pro­bate and How Does It Work?

May 26, 2019 by Liza Hanks

Photo of old fashioned keys illustrating Probate FAQ

Estate plan­ning expert Liza Hanks gives you the facts about pro­bate: what it is, what it’s for, and why courts don’t always require it.

What Is Probate?

Pro­bate is how a court set­tles the estate of some­one who has died. The judge appoints some­one, called an execu­tor or per­sonal rep­re­sen­ta­tive, to han­dle the fol­low­ing tasks:

  • gather and value the estate’s assets
  • pay bills and any taxes due, and
  • dis­trib­ute prop­erty to heirs or beneficiaries.

If you make a will before you die, you can nom­i­nate your execu­tor or per­sonal rep­re­sen­ta­tive. The judge will almost always fol­low your sug­ges­tion when mak­ing the offi­cial appoint­ment. If you die with­out a will, how­ever, the court will decide who your execu­tor will be — usu­ally your sur­viv­ing spouse, one of your adult chil­dren, or another close rel­a­tive if you are sin­gle with­out grown kids at the time of your death.

The Pur­pose of Probate

The pur­pose of pro­bate is to pre­vent fraud after some­one’s death. (Imag­ine every­one loot­ing the cas­tle after the Lord dies.) The pro­bate process freezes the estate until a judge deter­mines that the will is valid and the execu­tor has:

  • noti­fied all rel­e­vant people
  • iden­ti­fied and appraised all the prop­erty in the estate, and
  • paid all debts and taxes out of the estate’s assets.

After all of that’s done, the court issues an order dis­trib­ut­ing the prop­erty and closes the estate.

Many Estates Can Avoid Probate

Not all estates must go through pro­bate. First, if the value of an estate falls below a cer­tain thresh­old, it is con­sid­ered a “small estate” and it does­n’t require court super­vi­sion to be settled.

Sec­ond, not all assets are sub­ject to pro­bate. Some kinds of assets, like assets held in joint ten­ancy, trans­fer auto­mat­i­cally when an owner dies. And some kinds of prop­erty that allow you to name a ben­e­fi­ciary go directly to the per­son you name. Exam­ples include retire­ment accounts, life insur­ance, and payable on death accounts. A good estate plan­ning adviser can help you take advan­tage of meth­ods like these to pass your prop­erty as quickly and inex­pen­sively as possible.

Finally, if you make a liv­ing trust to hold your largest assets, that prop­erty won’t go through pro­bate unless the prop­erty you pass out­side of the trust adds up to more than your state’s small estate limit.

More Infor­ma­tion

For details about your state’s pro­bate pro­ce­dures see What You Need to Know About Pro­bate in Your State in Legal Con­sumer’s Inher­i­tance Law learn­ing cen­ter.

Liza Han­ks’s most recent book is Every Cal­i­for­ni­an’s Guide to Estate Plan­ning. To con­nect with her directly, visit www​.liza​hanks​.com.

Filed Under: Inheritance Law Tagged With: avoid probate, living trust, probate, probate court

About Liza Hanks

Liza Hanks is a partner at GCA Law Partners LLP in Mountain View, California, where she practices estate planning, trust administration, and probate law. She’s the author of Every Californian’s Guide to Estate Planning: Wills, Trusts & Everything Else and The Trustee’s Legal Companion (with Attorney Carol Zolla) and she writes about estate planning and inheritance law here at Legal Consumer. Liza is a graduate of Stanford Law School, a former magazine editor, and the mother of two children (neither of whom show any desire to become attorneys).

Primary Sidebar

Legal info by zip code (legal​con​sumer​.com)

  • Bank­ruptcy law
  • Unem­ploy­ment law
  • Wage and hours law
  • ACA/​Obamacare law
  • Health­care law
  • Child cus­tody law
  • Inher­i­tance law
  • Stu­dent loan law
  • Democ­racy law

More Blog Articles

  • Bank­ruptcy
  • Democ­racy
  • Child Cus­tody
  • Inher­i­tance Law
  • Oba­macare, ACA
  • Over­time, Min­i­mum Wage Law
  • Unem­ploy­ment Benefits

Deprecated: Hook genesis_footer_creds_text is deprecated since version 3.1.0! Use genesis_pre_get_option_footer_text instead. This filter is no longer supported. You can now modify your footer text using the Theme Settings. in /var/www/blog/www/wp-includes/functions.php on line 5758

© 2023 | Relational Vision LLC, dba LegalConsumer.com | Disclaimer: Legal information is not legal advice
Self-help services may not be permitted in all states. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The sponsored attorney advertisements on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Your use of this website constitutes acceptance of the Terms of Use, Privacy Policy and Cookie Policy.