What Is Probate?

Probate explained in plain language

Probate is the legal process that happens after someone passes away. It's the court-supervised procedure for validating a will (if one exists), identifying and valuing the deceased person's assets, paying any outstanding debts and taxes, and ultimately distributing what remains to the rightful heirs or beneficiaries.

Even when there's a clear, uncontested will, most estates must still go through some form of probate before heirs can receive their inheritance. The process is handled by the probate court in the county where the deceased person lived, and it's typically managed by an executor (named in the will) or an administrator (appointed by the court if there's no will).

Why does probate exist?

Probate serves several important functions. It provides a legal framework for confirming who inherits what, ensures creditors have a fair opportunity to collect debts owed by the estate, resolves any disputes among potential heirs, and creates a court record of the asset transfer. While it can feel like an unnecessary bureaucratic hurdle — especially for grieving families — the process exists to protect everyone involved.

What happens during probate?

While the specifics vary by state, most probate proceedings follow a similar general sequence. Keep in mind that each estate is unique, and the steps below may differ depending on your state's laws and the complexity of the estate.

Filing the petition. Someone (typically the executor named in the will or a close family member) files a petition with the local probate court to open the case. The court then notifies interested parties.

Appointing a personal representative. The court officially appoints an executor or administrator to manage the estate. This person receives legal authority — often called "letters testamentary" or "letters of administration" — to act on behalf of the estate.

Inventorying assets. The executor identifies and catalogs all assets: real estate, bank accounts, investments, vehicles, personal property, life insurance policies, and anything else of value. Many states require a formal appraisal.

Notifying creditors. The executor must notify known creditors and, in most states, publish a notice in a local newspaper. Creditors then have a set period — often three to six months, depending on the state — to file claims against the estate.

Paying debts and taxes. Valid creditor claims are paid from estate assets. The executor also files the deceased person's final income tax return and, if applicable, an estate tax return.

Distributing the remaining assets. Once debts, taxes, and administrative expenses are settled, the court authorizes the executor to distribute the remaining assets to the beneficiaries according to the will — or according to the state's intestacy laws if there's no will.

Closing the estate. The executor files a final accounting with the court, and the court formally closes the case.

What assets go through probate?

Generally, assets that are titled solely in the deceased person's name must go through probate. This commonly includes real estate owned individually, personal bank accounts, vehicles titled in the deceased's name, and personal belongings.

Certain assets typically bypass probate entirely, including jointly held property (which passes to the surviving owner), retirement accounts and life insurance policies with named beneficiaries, assets held in a living trust, and "payable on death" or "transfer on death" accounts. The distinction depends heavily on how assets were titled and your state's specific laws — a probate attorney can help clarify what applies in your situation.

Does every estate go through probate?

Not always. Many states offer simplified procedures for smaller estates — sometimes called "small estate affidavits" — that allow heirs to claim assets without a full probate proceeding. The threshold varies widely by state. Some states also allow certain assets to transfer through streamlined processes when the total estate value falls below a set amount.

Estates held entirely in a living trust may also avoid probate, since the trust (not the deceased individual) technically owns the assets. However, setting up a trust requires advance planning, and many families don't have one in place.

Can you access inheritance during probate?

In most cases, heirs cannot receive their inheritance until probate is substantially complete and the court authorizes distribution. This waiting period — which can stretch from several months to well over a year — can create serious financial strain for families already dealing with the emotional and practical costs of losing a loved one.

If you're an heir waiting on probate and need access to funds now, an inheritance advance may be an option worth exploring. Unlike a loan, an inheritance advance gives you immediate cash against your expected inheritance — with no credit check, no monthly payments, and no personal risk.