What Is Probate?

How Does Probate Work?

How the probate process works depends on whether you have a will.

Probate With a Will

If you die with a will, probate court will confirm that the will is legitimate. Once that's determined, the court authorizes the person you named as executor to carry out their duties. The court then ensures the executor pays any debts and taxes that the estate owes.

Probate Without a Will

If you die without a will (known as dying intestate) or if the probate court declares your will invalid, the court will decide how to distribute your estate. The probate court chooses an administrator and directs that person on how to handle your assets, including money and real estate.

If you're married or have children and die intestate, the state typically distributes your assets to your spouse and children. When you don't have children or a spouse, the court will look for other living relatives. If they don't find any, the state will take ownership of your assets.

Learn more: Questions to Ask Your Estate Planner

When Is Probate Required?

Probate is typically required if someone dies without a will, if the estate is large or complex or if the will is contested. However, each state has its own laws dictating when probate is necessary. For example, 18 states have adopted all or part of the Uniform Probate Code (UPC), which allows for informal probate if no one contests a will. In addition, many states allow estates valued under a certain amount to skip the formal probate process, even if no will exists. Instead, these small estates follow an informal probate process that involves filing documents without going to court.

Tip: Which assets are considered when valuing your estate varies from state to state. Some states don't include vehicles, out-of-state real estate or payable-on-death accounts, for example.

If an estate needs to go through the formal probate process, the executor petitions the court; informs your beneficiaries, creditors and heirs of probate; and publishes a notice of probate in a media outlet chosen by the court. Once the relevant parties are notified, the court holds a hearing to either validate your will or hear any challenges to it.

When your will is deemed valid, the executor gives the court a list of all your assets and their value, and a list of all your debts and creditors. Creditors typically have from three months to one year to file claims for what they're owed.

Learn more: What Happens to Debt When You Die?

How Long Does Probate Take?

Probate typically lasts six to 12 months, but that can vary. For instance, probate may be quicker if there is an uncontested will or the estate qualifies for the informal probate process.

Probate may take longer if there is no will, if the will is contested or if the estate involves complex assets such as a business or multiple pieces of real estate. It's also common for probate to take longer if federal or state estate taxes are owed. For 2025, federal estate taxes only apply to estates valued at $13.99 million or more. However, 13 states impose their own estate taxes, which may apply to smaller estates

Even a short probate process can seem endless to the surviving loved ones. The estate's executor can speed the process by keeping detailed records, responding quickly to requests for information, and filing documents and paying taxes in a timely fashion.

How Much Does a Probate Lawyer Cost?

The cost of hiring a probate lawyer can vary widely depending on the lawyer's experience, the estate's size and complexity, the going rate for attorneys in your area and how your lawyer bills. Typically, probate lawyers bill using either an hourly rate or a flat rate. An hourly rate could save you money if probate requires little of the attorney's time, but could become costly if the estate is more complex than expected.

Arkansas, California, Florida, Iowa, Missouri and Wyoming allow probate lawyers to charge a percentage of the estate's value. This can be very expensive; for example, attorney fees for probating a simple California estate valued at $500,000 would be $13,000, Nolo estimates. You'll generally save money by choosing an hourly or flat rate if that's an option.

You might not need a probate lawyer to handle a simple probate of a small estate. However, you may want to hire an attorney if someone is contesting the will, if estate taxes are owed or if the estate doesn't have enough money to pay its debts and taxes.

In addition to attorney fees, there are typically court fees, which can cost $1,000 or more. There may also be accounting fees and appraisal fees depending on the complexity of the estate. Attorney and other fees are paid from the estate, reducing the amount that goes to the heirs.

Learn more: How to Save Money on Legal Fees

How to Avoid Probate

There are some actions you can take to either avoid probate or speed up the process.

Establish Joint Ownership

Joint ownership of real estate or bank accounts means the asset passes to the surviving owner when you die, with no need for probate. Typically, spouses own their homes jointly. You can also grant joint ownership of your home or bank account to a chosen beneficiary, such as a child. Make sure the deed to your home is titled correctly to avoid any disputes.

Learn more: How to Add Someone to Your Bank Account

Designate a Transfer-on-Death or Payable-on-Death Beneficiary

You can also avoid probate by arranging for assets to transfer directly to a beneficiary upon your death.

• Some states allow you to deed real estate or vehicles to transfer to a specified beneficiary when you die, known as a transfer-on-death (TOD) beneficiary.
• You can also designate a beneficiary to inherit your savings accounts, checking accounts, money market accounts or certificates of deposit. This is called a payable-on-death (POD) bank account.
• Naming a beneficiary for retirement accounts, brokerage accounts, annuities and life insurance policies usually ensures the account transfers straight to the beneficiary when you die.

Tip: Beneficiary forms for life insurance policies, retirement plans and annuities typically take precedence over the directions in your will. Keep beneficiary designations current to ensure your wishes are followed.

Set Up a Living Trust

Also called a trust fund, a living trust is a legal entity into which you can transfer assets. Your living trust designates beneficiaries and specifies which assets they receive, as well as a trustee who manages the trust. When you die, the assets in the trust are transferred to your beneficiaries without going through probate. Keep in mind that even if you have a living trust, you usually still need a will to specify who inherits assets not held in the trust.

Learn more: What Is Estate Planning?

The Bottom Line

A lengthy probate process can make life harder for your loved ones at an already difficult time. Without access to your assets, they may have trouble paying their bills, potentially damaging their credit. Fortunately, there are many things you can do to accelerate or avoid probate. Working with an estate planning attorney can help you make the right decisions and provide peace of mind that your family will be taken care of after you're gone.