Probate explained — the process most families dread

This article is for educational purposes only and does not constitute medical, legal, or financial advice. Every family situation is different, and you should consult with appropriate professionals about your specific circumstances.

Your father passed away. He left a will. You assumed you could start managing his affairs right away. But the attorney explained that the will had to go through probate first. Probate is a court process. It takes time. It costs money. It's public. For the next eight months, you were stuck. The house couldn't be sold without probate approval. The bank accounts couldn't be transferred without probate approval. The bills piled up. Your mother, who was living in the house, needed to keep paying the mortgage, but the estate couldn't reimburse her until probate was complete.

Probate is one of those legal processes that people dread without fully understanding what it is or why it happens. Most people's exposure to probate comes when a family member dies and they suddenly have to deal with the probate process. By then it's too late to plan around it. Understanding what probate is and how it works helps you understand why people try to avoid it and what options exist for planning.

Probate is not inherently bad. It's a legitimate court process that ensures estates are settled properly and creditors are paid. But it's expensive, time-consuming, and public. For many families, avoiding probate makes sense.

Understanding the Basics

Probate is a court process that happens after someone dies. The purpose of probate is to validate the person's will, appoint an executor, collect the person's assets, pay debts and taxes, and distribute the remaining assets according to the will. These are all important things that need to happen after someone dies. Probate is the mechanism for doing them officially through the court.

For probate to happen, the will is filed with the probate court. The court reviews the will to make sure it's valid. The court appoints an executor (the person named in the will to manage the estate). The executor collects the deceased person's assets. The executor publishes notices to creditors. Creditors can make claims against the estate. The executor pays valid claims. The executor pays taxes. Then the executor distributes the remaining assets to the beneficiaries named in the will.

This is a court-supervised process, which means the court is involved throughout. The executor reports to the court. The court approves the executor's actions. The court confirms the distribution of assets. This court supervision ensures that things are done properly and that everyone gets what they're supposed to get.

Not all property goes through probate. Some property avoids probate by having beneficiary designations. Life insurance names a beneficiary, so the proceeds go directly to that person, not through probate. A retirement account names a beneficiary, so the proceeds go to that person. A bank account with a "payable on death" designation goes to the named person without probate. A property that's registered as "tenancy by the entireties" with a spouse automatically passes to the surviving spouse without probate. Some assets avoid probate because of how they're structured. But assets in your parent's sole name go through probate.

Probate is required if there's a will. If your parent dies with a will, the estate goes through probate. There's no way around it if there's a will. The court needs to validate the will. Probate is the process for doing that.

Probate is also used even without a will, though the process is called "intestate probate" (intestate meaning without a will). If your parent dies without a will, the court still needs to handle the estate. State law determines where the property goes. The court appoints an administrator (like an executor, but for estates without wills). The same process happens. The estate goes through probate, but the property is distributed according to state law instead of according to a will.

Probate takes time. The process typically takes at least several months. For complex estates, it can take a year or more. During the probate process, the executor can't finalize distributions to beneficiaries. Bills pile up. Property can't be sold. The family is stuck in limbo.

Probate costs money. There are court filing fees. There are attorney fees for the executor's attorney to guide the process. There might be appraisal fees if property needs to be valued. There might be accounting fees. These costs come out of the estate, which means beneficiaries get less. A simple, straightforward probate might cost a few thousand dollars. A complex estate might cost much more.

Probate is public. The will is filed with the court, so it becomes part of the public record. Anyone can look it up and see who your parent's beneficiaries are and what they inherited. For people who value privacy, this is a significant disadvantage.

Your Parent's Specific Situation

Probate matters to your parent if your parent dies with property in their sole name. If your parent owns a house in their sole name, that house will go through probate. If your parent has a bank account in their sole name, that account will go through probate. If your parent owns stocks or mutual funds in their sole name, those will go through probate. Property that's structured to avoid probate won't, but property in your parent's sole name will.

The amount of property that will go through probate matters. If your parent has modest assets, probate might not be too expensive or complex. If your parent has significant assets, probate costs can be substantial.

The complexity of the estate matters. If your parent's estate is straightforward, probate might be quick and inexpensive. If your parent's estate involves multiple properties, complex finances, or complicated family situations, probate can be much longer and more expensive.

Whether your parent wants privacy matters. If your parent is comfortable with the estate being public, probate isn't necessarily a problem. If your parent wants affairs to remain private, avoiding probate is important.

Taking Next Steps

Understanding that probate will happen is the first step. If your parent dies with property in their sole name, probate is likely.

The next step is deciding whether to plan to avoid probate. Not everyone needs to avoid probate. If your parent's estate is modest and straightforward, probate might be acceptable. If your parent's estate is significant or complex, probating might be worth planning to avoid.

If your parent wants to avoid probate, there are strategies. Using a revocable living trust can avoid probate. Putting property into a trust during your parent's lifetime means that property is owned by the trust, not by your parent. When your parent dies, property in the trust isn't subject to probate. It's distributed according to the trust's directions.

Using beneficiary designations can also help. Making sure property that can have beneficiary designations has them set up properly means that property avoids probate. A bank account with a "payable on death" beneficiary avoids probate. A retirement account with a beneficiary designation avoids probate.

Some property can be transferred "on demand" to a person. For example, a house can be deeded as "transfer on death" to someone. That property automatically transfers when your parent dies without probate.

For a straightforward estate, a simple will might be sufficient even with probate. For a more complex estate, using trusts or beneficiary designations to avoid probate makes sense.

Meet with an estate attorney to discuss your parent's specific situation and what planning makes sense. The attorney can advise on whether probate is likely and what strategies could avoid it.

This is one of those planning areas where understanding the process helps you see why people plan to avoid it. Probate isn't a disaster. It's a legitimate court process. But it's expensive, time-consuming, and public. For many families, taking steps to avoid probate makes sense. Understanding what probate is and what it involves helps you and your parent make informed decisions about whether to plan to avoid it.

How To Help Your Elders is an educational resource. We do not provide medical, legal, or financial advice. The information in this article is general in nature and may not apply to your specific situation. If you are concerned about a loved one's cognitive health or safety, consult with their healthcare provider or contact your local Area Agency on Aging for guidance and support.