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Probate

Probate is the court process for settling a dead person's affairs, and a great deal of American wealth never goes through it. Assets with a named beneficiary, property held in joint tenancy with right of survivorship, payable-on-death accounts and anything in a living trust pass outside probate entirely. What is left — assets in the deceased's sole name with no beneficiary — is what probate handles. Every state writes its own rules here, so the answer always begins with which state you are in. Call 1-844-690-0555 free, any hour — and a one-hour consultation with a licensed US attorney ($195, a fixed fee) can be booked right on the call.

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Probate at a glance

Much passes outside probate

Beneficiary designations, joint tenancy, payable-on-death accounts and trusts

Small estate procedures exist

Most states offer a simplified affidavit process below a dollar threshold

Beneficiary forms beat the will

A retirement account goes to whoever is named on the form, even if the will says otherwise

Executors owe fiduciary duties

And can be personally liable for getting the order of payment wrong

Creditors get a window

States set a period for creditors to present claims before distribution

What skips probate, and the trap in it

Life insurance, retirement accounts, payable-on-death and transfer-on-death accounts pass to the named beneficiary automatically. Property held as joint tenants with right of survivorship, or as community property with right of survivorship, passes to the survivor. Assets in a properly funded living trust pass under the trust. The trap is that beneficiary designations override the will: an ex-spouse still named on a retirement account will generally inherit it regardless of what the will says, and this happens constantly. Reviewing those forms after any divorce, remarriage or death in the family is the single highest-value estate task there is. Talk it through with a lawyer now →

What the executor actually has to do

File the will and open the estate, obtain letters of authority, identify and secure the assets, value them, notify heirs and creditors as the state requires, pay valid debts and taxes in the statutory order of priority, and only then distribute to beneficiaries and account for what was done. The order of payment matters enormously: an executor who pays beneficiaries before creditors and taxes can be personally liable for the shortfall. Keep meticulous records and a separate estate account, never mixing estate money with your own, and communicate with beneficiaries — most estate disputes are really communication failures. Talk it through with a lawyer now →

Small estates and simplified routes

Almost every state offers a simplified procedure for smaller estates: an affidavit process, often available after a short waiting period, that lets a successor collect assets without a full probate, and a summary administration for estates under a threshold. The thresholds vary widely. Since these procedures are dramatically cheaper and faster, the first question in any estate should be whether it qualifies. Many banks also release modest balances on a death certificate and an affidavit without any court process at all — ask each institution what it requires before assuming a probate is needed. Talk it through with a lawyer now →

Dealing with probate, step by step

List assets by how they are titledBeneficiary, joint, trust or sole name — only the last usually needs probate.

Check whether a small estate procedure appliesMost states have one, and it is far cheaper and faster.

Pay debts and taxes before distributing anythingGetting the order wrong can make you personally liable. Call 1-844-690-0555 free, any hour — and a one-hour consultation with a licensed US attorney ($195, a fixed fee) can be booked right on the call.

Probate — your questions answered

Do we always need probate?

No, and often not. If everything passed by beneficiary designation, joint tenancy or a trust, there may be nothing to probate at all. If what remains is modest, most states offer a small estate affidavit that avoids full probate. Ask each bank, insurer and registry what it requires — the answers vary, and many will release assets on far less than a full grant.

My father's will leaves everything to me, but my brother is named on the 401(k). Who wins?

Generally your brother. Beneficiary designations on retirement accounts and life insurance operate outside the will and override it, and courts rarely disturb them. This is the most common and most painful surprise in American estate administration, and the only reliable protection is updating the forms during life — not rewriting the will.

How long does probate take?

Months at minimum, and commonly the better part of a year or longer where there is real property, a business, tax filings or any dispute. Creditor claim periods alone account for several months in most states. Executors should tell beneficiaries this at the outset and repeat it, because unmet expectations cause most of the friction and most of the litigation.