Without a proper estate plan upon your death, your assets must pass through the court process known as probate before being distributed to your heirs. Probate can be time-consuming, costly, and open to the public. Because of this, avoiding probate and keeping your family out of court is a central goal of many estate plans.
During probate, the court supervises that finalization of your affairs to settle your estate. Probate typically consists of the following processes:
Determining the validity of your will (if you have one)
Appointing an executor or administrator to manage the probate process and settle your estate
Locating and valuing all of your assets
Notifying & paying your creditors
Filing & paying your taxes
Distributing your assets to the appropriate beneficiaries
Going through these steps can be painful and frustrating for the people you love. It’s expensive, time consuming, inconvenient, and sometimes downright messy.
With the right estate planning strategies, you can help your loved ones avoid probate all together—or at least make the process extremely simple for them. In this two-part series, we will explain how the probate process works, what it entails for your loved ones, and the different ways you can avoid probate.
When Probate Is Required
Without a fully built estate plan, probate is required. An incomplete estate plan would be no estate plan at all, or even just having only a will, or having a will that is deemed invalid by the court.
With a will-based estate plan, your loved ones will required to go through probate upon your death. To avoid probate, a full plan is needed to keep your family out of court and conflict. While a will is part of an estate plan, it's not an entire plan by itself.
And if you die without a will (known as dying intestate), probate is required to pay your debts and distribute your assets. Since you haven’t expressed how your estate should be divided, whatever is left after you debts are paid will be distributed to your closest living relatives based on the state’s intestate succession laws. These laws typically give priority to spouses, children, and parents, followed by siblings and grandparents, and then more distant relatives. If no living heirs can be found, then your assets go to the state.
Some states allow estates with a relatively low value to bypass probate and use an abbreviated process to settle the estate. For example, Florida law allows estates with a total value of less than $75,000 to go through a summary probate administration process.
When an individual’s debts exceed the value of their assets or a person has no assets at all, probate is often not initiated, and the estate is settled using alternative legal processes.
How Probate Works
Probate cases are largely determined by whether a valid will is in place at the time of death. The process is similar in cases where there is no will or the will is deemed invalid. The court will appoint an executor to oversee the probate on your behalf, and the rest of the process unfolds in a nearly identical manner, regardless of if you had a will.
1. Authenticating The Validity Of Your Will: Following your death, your executor is responsible for filing your will and death certificate with the court, which initiates the probate process. The court must authenticate your will to ensure it was properly created and executed in accordance with state law, and sometimes this involves a court hearing.
Notice of the hearing must be given to all the beneficiaries named in your will, along with potential heirs who stand to inherit in the absence of a will. The hearing gives these individuals the opportunity to contest the validity of your will, which would prevent the document from being admitted to probate.
A will can be contested for lacking requirements from the state law, like being improperly executed (signed, witness, and/or notarized). It could also be contested if someone claims that you were unduly influenced or coerced to change your will. If a contest is successful, the court will declare your will invalid and will act as though the document never existed in the first place.
2. Appointing The Executor Or Administrator: If you die without a will, the court will appoint someone—typically your closest living relative—to serve as your executor, also known as a personal representative or administrator. If you created a will, the court must formally appoint the person you named to serve as your executor before they can legally act on your behalf.
Sometimes, the court requires your executor to post a bond before they can serve. The bond functions as an insurance policy. In the event the executor makes an error during probate that financially damages the estate, the bond guarantees that the executor will reimburse the estate.
3. Locating & Valuing Your Assets: Once probate begins, the executor must identify, locate, and take possession of all your assets for appraisal to determine the total value of your estate. Your assets include the assets listed and unlisted in your estate planning documents. This is why keeping a regularly updated inventory of your assets is important. Any assets the executor is unable to locate will end up in the state’s Department of Unclaimed Property. Across the U.S., there is more than $58 billion (yes, that’s billion) of assets stuck in Departments of Unclaimed Property. This is easy to prevent by making sure you have an inventory of your assets and keep that inventory updated throughout your lifetime.
Real estate assets must also be cared for. Your executor must ensure that your mortgage, homeowners’ insurance, and property taxes are paid while probate is ongoing. These and all other debts can be paid from your estate.
Once all your assets have been located, the executor must determine their value through financial statements and/or appraisals. The combined value of your assets is used to estimate the total value of your estate. There are certain assets, like your homestead, that may not county toward total value.
4. Notifying & Paying Your Creditors: Your executor must notify your creditors of your death to ensure your outstanding debts are paid before distributing assets. In most states, unknown creditors can be notified by publishing a death notice with your local newspaper. Creditors typically have a limited period of time after being notified to make claims against your estate. The executor can challenge any creditor claims, and the creditor can petition the court to rule on whether the claim must be paid.
Your personal representative pays valid creditor claims with your estate funds, including any outstanding medical and funeral expenses.
5. Filing & Paying Your Taxes: Your executor is also responsible for filing and paying any outstanding taxes you owed at the time of death. This includes personal income and capital-gains taxes, as well as state and federal estate taxes, if your estate is valuable enough to qualify.
The federal estate tax exemption is currently set at $11.7 million for individuals and $23.4 million for married couples, so most families won’t have to worry about estate taxes. And for those who do exceed that threshold, there are several strategies you can use to reduce the size of your estate to avoid these taxes. The tax exemption amount is set by Congress and could change any year, at currently is schedule to reset at a much lower rate in 2026.
Any taxes due are paid from estate funds. In some cases, this may require liquidating assets to raise the needed cash. Our firm not only supports you during your lifetime to implement tax-saving strategies to minimize your tax bill, but we also work with your loved ones following your death. We ensure the legacy you’ve built provides the maximum benefit to your loved ones.
6. Distribution Of Your Remaining Assets: Once the court confirms all of your debts and taxes have been paid—which typically requires the executor to file an accounting of all transactions from the probate process—the executor can petition the court for authorization to distribute your remaining assets.
Once assets have been distributed, the executor must file a petition with the court to close probate. If all creditors and taxes have been paid, your assets have been distributed, and there are no other outstanding issues to be addressed, the court will issue an order formally closing the estate and terminating the executor’s appointment.
Keep Your Family Out of Court & Out of Conflict
One of our primary goals when creating your estate plan is to keep your family out of court and out of conflict. If your family must go through probate, your estate plan falls woefully short of that goal. It leaves those you love most stuck in an unnecessary, expensive, time-consuming, and public court process.
Proactive planning will spare your family the burden of probate. Next week we’ll look at ways to put a plan in place that will keep your estate out of probate. If you haven’t put an estate plan in place or have one that would force your family to go through probate, consider reaching out to schedule Family Wealth Planning Session with us.
Next week in part two, we’ll discuss the estate planning strategies that you can use to avoid probate.
This article is a service of Jennifer Winegardner of Rayboun Winegardner, PLLC. We do not just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love. That's why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love.