How Does Probate Work?

By Fraser Sherman

Probate courts handle a variety of issues, including appointing guardians for mentally incapacitated people and approving requests for changing someone's legal name. The job probate courts are best known for, however, is administering the affairs of someone recently deceased.

Why Use Probate

A will gives the deceased's wishes for disposing of her property after her death. Sometimes, this doesn't go smoothly. Whoever manages the estate may do a poor job. Creditors may demand part of the estate to settle the deceased's debts. Family members could disagree about how to interpret the will or whether it's legally binding.

The probate court can help solve these dilemmas. The court can oversee the estate executor and his decisions regarding estate management. It gives creditors a limited window to file claims against the estate. The judge can hear disagreements about the will and resolve them.

Who Uses Probate

Many assets don't go through probate. If the deceased named a beneficiary for her 401(k) or IRA, the beneficiary inherits without the probate court weighing in. So does the beneficiary of the deceased's life insurance. If the deceased co-owned assets with someone else, those assets may pass to the co-owner automatically.

If the estate is small, the heirs may be allowed to receive the assets without probate oversight. Small could mean $15,000, $25,000 or $100,000, depending on state law. However if the finances are complicated or an heir contests the will, probate may be necessary no matter how small the estate is.

The Probate Process

The deceased has the right to name an executor in his will to manage his estate, but the appointment isn't automatic. The first step for the executor is to file a petition with the probate court to accept him in that position. The paperwork includes a death certificate and a copy of the will. If the deceased left no will, the court must appoint an administrator to carry out the executor's job. Typically this is a close relative or spouse of the deceased. Whoever becomes executor or administrator receives letters testamentary confirming his appointment.

Once appointed, the executor takes charge of the estate assets and carries out his duties:

  • Set a dollar value on the estate assets.
  • Paying any taxes the deceased or the estate owe.
  • Settling debts owed to the deceased's creditors.
  • Managing the estate. This can include selling off assets to pay taxes and debts.
  • Distributing the remaining assets to the heirs.

Depending on state law and circumstances, this may require constant supervision by the probate judge, or the court only intervenes if there's a problem. At the end of probate, the court may require the executor to present the estate accounts for review before finally closing the estate.

State by State

Each state sets its own rules for probate courts. They may be known as Chancery Court, Surrogates Courts or the Court of Common Pleas, or the state may have no probate courts and assign wills and estates to the regular courts. In states that do have probate courts, state law determines which cases the court deals with.

New Hampshire, for example, assigns not only wills and estates to probate court, but also involuntary commitment hearings, adoptions, and cases where real estate has to be partitioned among multiple owners. Georgia's Probate Court reviews wills but also accepts applications for public fireworks displays. Some states assign cases involving juveniles to probate court. The state court system's website or the staff at your county courthouse can provide details about your state's judicial approach.

About the Author

A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.