How does probate work?

What is probate?

When someone passes away, they usually have plans for the way they want their assets transferred to their loved ones, outlined in a will. Probate is the legal process that ensures these plans are carried out correctly. Every state has their own probate court system, which is responsible for validating the will, appointing an executor, ensuring that debts are paid by the estate, and mediating any conflicts that may arise.

Depending on the state the deceased lived in and the size of the estate, probate can typically take six to nine months and cost $1,500 or more. Costs can go up significantly if there is no will or the will is contested.¹

Related: What is an estate plan?

Is probate necessary?

In most cases, yes. Even though it can be a long and costly process, probate is often necessary to settle debts and mediate disputes over inheritance. There are a few common ways to avoid probate:

• The estate falls below a certain value
• Some assets have named beneficiaries and transfer automatically
• Smart use of trusts

Which assets go through probate?

In most cases, individually owned assets and personal property are all subject to probate. These can include:

• Real estate and land
• Vehicles
• Investment accounts or portfolios
• Bank and brokerage accounts
• Businesses, including partial ownership
• Jewelry and heirlooms
• Valuable collectibles

See more facts on probate.

Can a will avoid probate?

No. Depending on the state, some estates may avoid probate if they fall under a certain value, and some assets can transfer without probate, but simply having a will does not bypass this process. For ways to avoid or reduce probate, see the last section of this article.

The probate process

The entire probate process can be lengthy, but it is usually otherwise fairly simple. Things can get more complicated and costly quickly if the deceased’s will isn’t clear or is contested. Each state’s laws are slightly different, so it’s important to check with local courts or lawyers. Here are the steps you’ll go through with probate:

File for probate

A death certificate and will of the deceased need to be submitted to your local probate court along with a filing. The court will confirm that the will is valid and appoint an executor of the estate. The executor is often selected by the deceased in the will but must be officially appointed by the court. If there is no clear guidance in the will, the court can select someone. The executor is usually a family member or a family lawyer who will have a fiduciary responsibility to the beneficiaries to do what is in their best interest.

Contact beneficiaries and creditors

The next step is for the executor to inform all beneficiaries outlined in the will that the probate process has started. The beneficiaries have the right to view the will and contest it if they choose to do so. If the deceased had outstanding debts, creditors will be informed as well.

Inventory assets

The executor works with beneficiaries, financial institutions, and other parties to create a list of the deceased’s assets and their values. Sometimes professional appraisals are necessary for particular assets. This information is then submitted to the court.

Pay debts

Any outstanding debts must be paid by the estate first before any assets are distributed to beneficiaries. This includes bills, mortgages, owed taxes, credit card balances, the executor’s fee, and other liabilities. If valued over $13,990,000 (in 2025), the estate will also be subject to federal estate taxes. If the estate lacks sufficient liquid cash to cover these debts, assets will need to be sold to meet those obligations. This is why it’s so important to use estate planning tools like trusts to ensure that your family gets the inheritance you intended.

Related: What happens to debt when you die?

Distribute assets to beneficiaries

After taxes and debts, the executor will request court permission to distribute the remaining assets to the beneficiaries according to the will. If the estate is sizable, heirs may also be subject to inheritance tax. The court will check that all other claims have been properly resolved and approve the request.

Close the estate

After all the assets are distributed, it’s time to close the estate. The executor must submit a petition to the probate court and, once approved, the process is closed.

How to avoid probate on an estate

The first thing you should do is check your state’s probate exemption. If the total value of the estate is below that threshold, you won’t be subject to probate at all. This value ranges widely from state to state. For example, in South Carolina, any estate above $25,000 must go through probate, while in Wyoming, the threshold is $200,000.

If the estate exceeds your state’s threshold, the best way to avoid probate is to have a solid estate plan in place that utilizes various legal tools to ensure that your last wishes are honored. Here are some of the most common ways to avoid probate:

Create a trust

Trusts are not just a tool of the wealthy. They can help anyone better plan their estate. By placing property in a trust, you functionally remove your individual ownership of it, so it does not enter the probate process. Trusts offer other benefits, such as privacy and the ability to specify how and when assets are given to heirs. There are many types of trusts you can use for various objectives, and each provides unique benefits.

Transferring assets during life

You can also take advantage of gifting laws to give heirs certain parts of their inheritance while you are still alive. For example, you can transfer property before your death. This can have many advantages, both financial and personal, but often needs to be structured very carefully to avoid unnecessary taxes for either the grantor or the inheritor.

Take advantage of joint ownership

Any property where two parties are named owners, such as a home with two names on a deed, will automatically transfer to the surviving owner without entering the probate process. Adding your spouse or another family member to a deed is one way to give an inheritance to an heir without probate.

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¹“Wills and Estates,” American Bar Association, 2021.

Neither New York Life Insurance Company nor its Agents provide personalized legal advice. Please consult your legal adviser to find out how the general concepts in this article would or would apply to your personal circumstances. Then send the file back for final approval