Probate 101: what it is, and whether you need it
Twenty minutes here can save you months.
In short
Probate is the court process that makes things official: debts get paid, and what remains goes to the right people. Not every family needs it. Many assets skip probate on their own, and most states offer a faster path for smaller estates.
Time
varies by state and by estate: full probate commonly runs many months to over a year, while small estate paths take weeks rather than months.
Cost
varies by state. California charges 435 dollars to open and 435 more at distribution. Attorney optional in many states.
Who
the executor named in the will, or the closest willing relative when there is no will.
What probate actually is
The law needs a way to move what your person owned to the people meant to have it. Probate is that way.
A court confirms the will, or applies state rules when there is none. It appoints someone to handle things, gives that person legal authority, and supervises while debts are settled and the rest is passed on.
Do I have to go through it
Often not for everything, and sometimes not at all.
Assets that skip probate: anything with a named beneficiary such as life insurance and retirement accounts, jointly held property with survivorship, payable on death accounts, and anything inside a living trust.
Probate is usually needed when assets sat in their name alone, most often a house or a solo bank account.
The shortcut most families miss
Every state sets a threshold under which you can use a small estate affidavit or a simplified procedure. The affidavit is a form rather than a court case, though in several states, including California, the simplified route above the affidavit tier is still a court petition, only a lighter one.
Thresholds vary widely. If the estate is modest, check this first.
If there is no will
The estate is intestate, and state law sets the order: spouse, children, parents, siblings, outward from there.
Slower, but a well worn path. Families walk it every day.
The steps
Watch-outs
- Never pay estate debts from your own pocket.
- Never distribute before the creditor period closes.
- Keep every receipt.
- Do not touch the house until you have authority.
Words you will meet
- executor
- named in the will to handle things.
- administrator
- appointed when there is no will.
- letters testamentary
- the court paper proving authority.
- intestate
- without a will.
- small estate affidavit
- the shortcut form.
Sources
- What probate is, the court appointment of a personal representative, and the order of priority when there is no willopens in a new tab
- Formal probate typically takes 9 to 18 months in California, and the filing fee is typically 435 dollarsopens in a new tab
- Property with named beneficiaries, joint title, or a living trust can transfer without formal probate, and California small estate limits by date of deathopens in a new tab
- Debts are paid from the estate, and family members do not usually have to pay a deceased relative's debts from their own moneyopens in a new tab
Related
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