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Probate is the legal process for handling someone’s affairs after they die. A court oversees paying debts, distributing property, and ensuring the deceased person’s wishes (or state law) are followed. For families, probate determines who gets the house and how to legally transfer it.

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What Probate Does

When someone dies owning property in their name alone, that property is “stuck.” Banks won’t release accounts. Buyers can’t purchase real estate. The title is in a dead person’s name. Probate “unsticks” everything by:
  • Confirming the will is valid (or applying state law if no will)
  • Appointing someone to manage the estate
  • Identifying and valuing all assets
  • Paying debts and taxes
  • Distributing remaining property to heirs
  • Providing legal documentation for title transfers

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When Probate Is Required

  • Property titled solely in deceased’s name
  • No beneficiary designated
  • Will names beneficiaries but property wasn’t transferred during lifetime
  • Disputes among potential heirs
  • Property owned jointly with survivorship rights
  • Property held in a living trust
  • Property with transfer-on-death deed
  • Accounts with named beneficiaries
  • Small estates below state threshold (varies: 10,000−10,000-150,000+)
Many families are surprised to learn probate is needed. Even with a will, property titled in the deceased’s name alone typically requires probate to transfer.

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The Process Step-by-Step

1

File with probate court

Someone (usually family member or person named in will) files paperwork with the local probate court. Filing fee typically $100 - $400.
2

Court appoints representative

Court officially appoints an executor (if named in will) or administrator (if no will) to manage the estate. This person is called the “personal representative.”
3

Notify interested parties

Personal representative notifies heirs, beneficiaries, and creditors. Often requires publishing notice in local newspaper.
4

Inventory assets

Personal representative identifies and values all estate assets, including real estate. May require professional appraisals.
5

Pay debts and taxes

Estate pays valid creditor claims, final income taxes, and any estate taxes owed. Real estate may need to be sold to pay debts.
6

Distribute property

After debts are paid, remaining property goes to beneficiaries named in will or determined by state law.
7

Close estate

Personal representative files final accounting with court. Court approves and officially closes the estate.

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Timeline and Costs

Timeline: 6 months to 2+ years depending on estate complexity, court backlog, and whether disputes arise. Costs: Typical costs:
  • Court filing fees: $100 - $400
  • Attorney fees: $2,000 - $10,000+
  • Executor/administrator fees: 2-5% of estate value
  • Appraisals: $300 - $500 per property
  • Publication/notices: $100 - $300
Probate costs come from the estate, reducing what heirs receive. Complex or contested estates can cost significantly more in attorney fees.

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Real Estate in Probate

Property remains titled in deceased’s name until probate completes. Personal representative manages the property—paying taxes, maintaining insurance, handling repairs.Heirs typically cannot sell or refinance until probate grants authority.
Some states allow property sales during probate with court approval. Proceeds go to the estate for debt payment and distribution.Court may require sale if estate needs funds to pay debts or if heirs disagree about keeping property.
After probate closes, personal representative signs deed transferring property to beneficiaries. This deed, combined with probate court documents, allows heirs to record clear title.
If multiple heirs inherit one property, they become co-owners. They must agree on keeping, selling, or buying each other out. Disagreements may require partition action (court-ordered sale).

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With a Will vs Without

Will names who gets what and who manages the estate. Court confirms will is valid, then follows its instructions.Process is generally smoother because deceased’s wishes are documented.
State law determines who inherits based on family relationships. Typically: spouse first, then children, then parents, then siblings, then more distant relatives.Court appoints administrator (often closest relative). Process may take longer due to heir identification.

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Simplified Probate

Many states offer faster, cheaper options for smaller or simpler estates.
For estates below state threshold (varies widely). Heirs sign sworn statement to claim assets without full probate. Quick and inexpensive but usually doesn’t work for real estate.
Shortened probate process for estates meeting certain criteria (small value, no disputes, simple assets). Less court involvement, lower costs, faster completion.

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Common Complications

If will can’t be found, estate proceeds as intestate (no will). Some states allow proving will contents through copies or witness testimony.
Disagreements about will validity, asset values, or distribution can extend probate for years. May require litigation to resolve.
If potential heirs can’t be located, court may require heir search before distribution. Unclaimed property may eventually go to the state.
If estate owes more than it’s worth, property may be sold to pay creditors. Heirs receive nothing but aren’t personally responsible for remaining debts (in most cases).

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Avoiding Probate

Common strategies to avoid probate for real estate:
  • Joint ownership with survivorship – property passes automatically to surviving owner
  • Living trust – property passes according to trust terms
  • Transfer-on-death deed – property passes to named beneficiary (not available in all states)
These require planning before death. Once someone dies, their property either goes through probate or qualifies for an exception.

Next: Inherited Property

Receiving, managing, and selling property from estates

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