What Is Probate?

When someone dies, they leave behind a unique footprint in the world. Their relationships, community, and accomplishments are woven into this footprint, along with more tangible aspects like physical belongings, financial obligations, real estate, and investments. These more tangible things are collectively referred to as a person's estate.

This is where probate steps in. After a person passes away, if they leave behind valuable assets, then the probate process is the legal procedure for sorting out their estate and carrying out their wishes.

How probate works

The probate process oversees the administration of the estate. This usually happens in the same area where the person died, but with real estate, it can happen in the area where the real estate is.

If the person doesn't have any valuable assets, or if their combined value is below a certain number (which differs from state to state), then probate might not be needed. But for those with a sizable estate, how probate works depends on whether there's a will or not.

Probate with a will

A person who passes away and leaves behind a will is called a testator. A testator's will makes clear whom they would like to act as their personal representative, or executor. Typically a family member, the executor takes on the vital role of managing the person's estate and carrying out their final wishes.

Upon the testator's death, the executor, who's responsible for kickstarting probate, begins the process. Rules vary in different states on how promptly this needs to happen.

First, the executor needs to locate the will and secure the death certificate. Next, they file the will with the probate court, starting a supervised proceeding. The court decides if the will is authentic, and officially gives the executor the legal power they need to represent the person who's passed away.

The executor needs to find all the person's assets, then estimate their worth. They also have a number of other tasks to carry out, so it may help to seek expert counsel from an attorney and tax professional. Top of their list, however, is to keep the assets safe, settle bills, file taxes, and be patient.

If a person dies without a will, or if the probate court finds that their will is invalid, then their estate is known as intestate. In this situation, the probate process adapts, and the court uses state laws as guides for how to distribute the person's assets.

With no will, a probate court appoints an administrator. They oversee the estate, address legal claims, and settle outstanding debts. They're also in charge of finding legal heirs, including children, parents, and spouses.

Meanwhile, the court figures out what the person’s assets are and how they should be divided up. Usually, everything is given to the person’s spouse and children. Sometimes, no legal heirs step forward by the end of a certain timeframe, so the person’s assets are given to the government, a process called escheatment.

How to plan for a smooth probate process

The complexity of probate may feel challenging, but here's the good news: Anyone can take steps before death to make the journey smoother for their nearest and dearest down the line. The best place to start is with a will.

A will is a valuable document that lays out a person's wishes for settling their estate. It also lets them appoint a trusted executor to carry out their wishes. But to make sure that the probate court accepts your will as valid, take these steps -- and always check with your state's requirements, as they might vary:

• Take a competency test to show you’re of sound mind (if required by your state)
• Make sure 2-3 adult witnesses are present when you sign the will
• Include all of your valuable assets
• Include directions for everything
• Name your executor in the will
• Keep your will up to date
• Destroy old versions of your will—even rough drafts

It's also important to talk with your future executor. Make sure they understand the scope of their work and also how to find what and who they'll need.

Beyond making a will, there are other savvy strategies for ensuring your assets are distributed exactly as you wish. Designating beneficiaries on your accounts and establishing a trust[ES1.1] for specific assets can bypass probate entirely, ensuring a quicker and less complicated transfer.

Probate can take an average of 6-9 months and cost about $1,500 when there’s a will. If there’s no will, it can cost much more.

By planning, you're not just thinking of what will happen to you, but of what will happen to your loved ones and your heirs. Making a will and appointing an executor will ultimately help ease their burden.

A living will

Preparing for our eventual passing away is not just about dividing up possessions. It's also an opportunity to outline the kind of farewell you envision. A living will, which is a separate legal document from a regular will, outlines your medical preferences, covering treatments and decisions on what measures to take to keep you alive in the event you are seriously ill or injured. It’s also called an advance directive or healthcare directive.

To make sure you cover all your bases, it's usually advisable to get help from an estate attorney, but you can download your state's advance directive form online to get started.

Planning funeral arrangements

Because wills can take some time to find, validate, and read, they aren't the best place to articulate your preferences for a burial or cremation, a solemn funeral or a joyful celebration of life, or other memorial details.

Instead, it's best to either let your family know what your funeral and memorial wishes are, or plan ahead with a funeral provider by prepaying for the services you would like. Planning arrangements ahead of time is a compassionate way to ensure that your departure is accompanied by the peace of knowing your wishes are understood and honored.

The Neptune Society is the nation's oldest and largest provider of affordable cremation services. Whether you have an immediate need or want to plan cremation services in advance, we are always available to assist you and your family. Call 1-800-NEPTUNE (800-637-8863) today or contact us online to learn more.