This article is for informational purposes only and does not constitute medical, legal, or financial advice. Always consult with qualified professionals regarding your specific situation.

Probate and estate settlement — the legal aftermath

After someone dies, their property and money and everything they owned needs to be transferred to whoever they left it to. This transfer is called probate if the person left a will, or it follows state intestacy laws if they didn't. The process sounds intimidating, and sometimes it is, but it exists to protect everyone involved and to make sure things get handled fairly.

Probate is slow. It takes months, sometimes over a year. It can be expensive. But it's also not actually as scary as it sounds. You're not alone in working through it. And for many people, especially those with small estates, probate is much simpler than they expect.

What probate is and when it happens

Probate is the legal process of confirming that a will is valid and then distributing the person's estate according to that will. It takes place in the court in the county where the person lived. During probate, the will is officially read, debts are paid, taxes are handled, and then property is distributed to heirs.

If the person didn't leave a will, probate still happens, but it follows your state's intestacy laws instead of the person's wishes. The state has rules about who inherits what, usually prioritizing spouses and children over more distant relatives. If there are no heirs, the estate goes to the state.

Not everything goes through probate. Some assets pass directly to beneficiaries. If the person named a beneficiary on a life insurance policy, that money goes to that beneficiary outside of probate. The same is true for some retirement accounts like IRAs and 401(k)s. Bank accounts that are set up as "transfer on death" accounts bypass probate. Anything that's titled as joint tenancy with another person transfers directly to the surviving owner. These bypassing assets can be significant.

For many people, especially those who owned a home, had bank accounts, or had investment accounts, probate is necessary. You can't transfer the title to a house without going through probate. You can't settle bank accounts without probate. Probate is the legal machinery that makes this transfer possible.

When probate is not needed

If the entire estate passes directly to beneficiaries through accounts set up appropriately, probate might not be needed. If the estate is very small, some states have simplified probate processes for small estates that take less time and money.

In some states, if the person left a revocable living trust, the assets in that trust pass to beneficiaries without probate. This is one reason some people create trusts. The trust still has to be settled and debts still have to be paid, but it happens outside the court system and it's usually faster.

If you're not sure whether probate is needed, ask an attorney. They can look at the estate and the will and tell you what's required.

The cost and duration

Probate is expensive. The attorney fees alone can run thousands of dollars, depending on the complexity of the estate and whether anyone contests the will. There are court fees. There might be appraisal fees if property needs to be valued. There might be executor fees if an executor is chosen.

The cost is paid from the estate before assets are distributed to heirs. So if the estate is large, the costs might not be a big percentage. But if the estate is smaller, the costs can consume a significant portion of what heirs would have received.

Duration is measured in months, sometimes over a year. The exact timeline depends on how complex the estate is and whether anyone challenges the will. Simple estates can sometimes move through probate in six months. Complex estates or contested wills might take years.

During this time, heirs are waiting to receive their inheritance. The executor is managing the assets and making sure everything is handled properly. Creditors are being notified and given a chance to claim against the estate for any debts owed. Taxes are being filed and paid.

Your role in probate

If you're the executor, you're the person managing the process. You're working with the attorney. You're responsible for notifying heirs, managing assets, paying debts, filing tax returns, and ensuring that everything is distributed according to the will. This is significant work, and it's okay if you feel overwhelmed by it.

If you're not the executor but you're an heir, your role is smaller. You receive information about the probate. You might be asked questions about the person or the estate. You wait for the process to complete and for your inheritance to be distributed.

An executor can hire an attorney to guide them through probate. In fact, this is advisable unless the estate is very small and simple. An attorney knows the local rules and procedures. They file the required documents. They guide the executor through the steps. This costs money, but it prevents costly mistakes.

The process

The executor initiates probate by filing the will with the court. The court reviews the will to confirm it's valid. The executor is officially appointed. The executor then notifies heirs, creditors, and government agencies. An inventory of the estate's assets is created. The estate's debts are paid: funeral costs, taxes, any outstanding bills. Then the remaining assets are distributed to heirs according to the will.

Some of these steps happen simultaneously. Some happen sequentially. The court sends notifications at various points. The process feels slow because it is slow, and the slowness is intentional. It protects everyone involved. It ensures debts are paid. It prevents disputes.

When probate gets complicated

Probate usually becomes complicated if someone contests the will. If a family member thinks the will is not valid or not fair, they can challenge it. This triggers litigation, and the probate process is halted while the challenge is resolved. This can take years and cost tens of thousands of dollars.

Probate can also be complicated if there's a lot of property or if property is hard to value. If the person owned a business, for example, the business needs to be valued and either sold or transferred to heirs. If there's property in multiple states, the process might involve probate in more than one state.

These complications are why having an attorney is important. They can work through these issues and protect the estate and heirs.

Getting help

If you're the executor, hire an attorney. This is not something you should do alone unless the estate is very small and simple. The attorney cost comes out of the estate, so it's not coming out of your pocket. It's an investment in doing the job correctly.

If you're an heir, be patient. The probate process is slow. You're not being ignored or mismanaged. You're waiting for a process that's designed to be thorough and fair.

Ask questions. Read the documents you're sent. Understand what's happening. If something seems wrong or unclear, ask the executor or the attorney. You have a right to know what's happening with the estate.

How To Help Your Elders is an informational resource for families working through aging and elder care. We are not medical professionals, attorneys, or financial advisors. The information provided here is for educational purposes and should not replace professional consultation. Every family's situation is unique, and rules, costs, and availability vary by location and circumstance.