Beginner's Guide to Probate

Probate and estate settlement costs an average of $14k and can mean working 12 hours of your week, every week, for the next year.

624 hours of work? Because someone passed away?.... What!? 

Yeah. It’s a lot. 

And yes, there are ways to make probate easier (and faster), but reality is, the process still takes a while, no matter how good you are and how well you equip yourself.

The point is — probate is a big deal. There are substantial legal, financial, and personal tasks to navigate. And if you’ve recently dealt with a death and are trying to figure all this out, it can feel really intense. 

Fortunately, that’s why we’re here. Our entire mission at Atticus is to make the after-death to-do’s easier, and we’re going to both breakdown probate into simple terms, show you what you need to do next, AND give you everything you need to do this own your own.

Let’s start with the basics. 

What is Probate?

Probate is the formal legal process of validating a deceased individual’s wishes, assessing any applicable death taxes and then ensuring rightful heirs and beneficiaries are transferred ownership of entitled assets and property. 

Did your eyes glaze over?

That’s okay. 

👇 Let’s put it another way: 

Probate is the government’s way of making sure that when a person dies, the right stuff goes to the right people (including the taxes the government wants). 

All that “stuff” is known collectively as someone’s “estate”. 

Probate court is the court that oversees this process, which includes validating wills, appointing people to catalog and administer the estate assets (a.k.a. the executor or personal representative). 

In a perfect world where everyone knew what to do and agreed on everything, then sure, we wouldn’t need probate courts. But families fight, laws change, and the government wants their money.

Key Probate Terms You Need to Know

There’s a lot of jargon in probate. These are just fancy words that often mean simple things. 

Here are the main definitions you need to know, and if you have a more specific term you’re curious about, go check out the Atticus Glossary. 

You can also click the names of any of the terms below for more information. 

• Estate - A collective term for all of the assets someone left behind.
• Affidavit - a written statement confirmed by oath or affirmation and used as evidence in court.
• Executor - The person appointed to settle an estate / handle the probate process; also Executrix (if female). 
• Personal Representative - Just another name for an executor.
• Decedent - The person who died 
• Will/Testament - A legally binding document that details what to do with someone’s belongings when they pass.
• Letters Testamentary - Legal document from probate court that gives an executor the right to access the deceased’s accounts and belongings. Nowadays, this is often a PDF of a form you’d attach to an email along with a copy of the death certificate and sometimes your ID to prove that you are the person in charge of the decedent’s estate. 
• Letters Administration - Same as letters testamentary except this is the name for when the person didn’t have a will. The exact term can also vary depending on state.
• Beneficiaries - People listed in a will as recipients of an estate’s assets. 
• Intestate - Dying without a will (testate is dying with a will). 
• Petition for probate - The first form you fill out to initiate probate / appoint an executor.

Why is Probate Confusing?

If you’ve done a little research and gotten a bit lost, that’s fair. The reason it is so hard to cleanly summarize probate is because it’s impossible to do — there are just too many variations depending on the situational factors & local laws of where you live. 

The laws, codes, to-dos, names, and processes change in each state. And sure, there are a lot of similarities, but there isn’t one way this all works. 

For example, personal representative and executor mean the same thing. Or the thresholds that qualify you for certain forms or processes can change. Maybe the value of your house needs to be less than $150k or $200k to qualify for a not-as-intense version of probate, or maybe you can skip probate if the estate has less than $50k in total assets. 

It all depends, BUT… 

That doesn’t mean it’s impossible to understand. You just need to know that while the general flow will be similar across states, the cogs in the machine may be a different shape. 

Even this blog can’t include EVERYTHING involved in probate, but consider this your north star, or your main trunk in the tree of understanding probate. 

Any particular term or note you see probably has a bit more depth depending on your state, so make sure you click into any link you’re curious about — plus you can always email us with a question here. 

With that in mind, let’s look at how probate (generally) works.

What Does the Probate Process Look Like?

📄 It’s forms all the way down, pal.

Before we get into the weeds, one critical thing to understand is that no matter how complicated probate seems, it is ALL forms. And the forms you need can change based on what the will says, the value of assets, what categories those assets fall under, whether or not the state requires probate bond, how certain assets were legally set up — you name it. 

Forms, forms, and more forms.

That’s all this really is, so the faster you can figure out what forms you need and the information you need to complete those forms, the faster you get through probate.

That’s the compact version. Now let’s get into it. 

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How probate really works

(Time to get into the weeds)

This explanation is split into three phases and paints the general arc of probate.

There will always be unique nuances and situations that crop up, but by taking your time and absorbing this, you’ll feel way more confident about this process — we promise 🙌

It’s also written from the perspective of the executor, so keep that in mind.

Probate phase 1: Initiation of Probate

When someone dies, assuming they had a will that named an executor, then the executor’s first job is to validate the will at the court. 

If they didn’t have a will, then someone is appointed by the court according to their intestacy laws, which are just the laws that govern what happens when someone passes away without a will. 

The de-facto executor is usually the spouse or immediate family member. Once the executor or person applying to be the executor is established, they need to petition the court to formally begin probate, which is when they are officially recognized by the court and given their letters testamentary / administration that let them collect all of the sensitive belongings and accounts. 

Petitioning just involves dropping by the court and signing a few forms. 

An executor (or executrix if you’re a woman), can refuse to accept the responsibility. 

Declining just involves signing a form (see we told you it was all forms), and then if the will establishes who would serve if that person couldn’t, then that person would be up next. This process will repeat until the family and judge find someone who can serve. 

At this point, it is extremely important to understand what level of probate you need before petitioning the court and formally starting the probate process.

The great news is that you don't have to figure this out alone, Atticus makes this easy — talk to one of our experts and figure out your probate level right now. 

Why?

Because you should always be aiming for the lowest level of probate possible. The higher the level, the more forms, the longer it takes. This means waiting longer for inheritances and dragging out an already long process. 

And sometimes, depending on your state, you can skip probate entirely, which can mean getting your family’s assets distributed faster and with less time and headaches than dealing with the court, although this is usually only an option for people with very small estates. 

Determining your level of probate

Letters of admin/testamentary are the main reason people file for probate, regardless of the type. In most states there are 2-3 types of probate processes that vary in how much court supervision there is over the process from the initial filing. In general, like we said, it’s best to opt for the lowest level you qualify for. 

But… if you have a lot of high-value assets, you may not have a choice. OR, if there’s a dispute between beneficiaries on who should get what, you may have to go through a court-supervised process to maintain order. 

So while the types of probate differ by state, you can generally think of them in these categories:

Level 1 - Passing assets by affidavit (effectively skipping probate) 

Level 2 - Summary or Small Estate Administration 

Level 3 - Full or Formal Probate (either supervised or unsupervised)

If the deceased has very little property, e.g. no house, no vehicle, barely any investments or savings, and few family members, it is possible that you will be able to use an affidavit for direct collection of personal property and bypass probate.

The next level beyond that is small estate. Small estate is usually based around a threshold— say $25k-50k-75k, depending on where you live. So if everything that qualifies as a probate asset (more on that later) is less than the floor the state laws define, then you may be able to file a few forms that make the transfer of assets easy.

Beyond that is full probate, which can either be formal (supervised) or informal (unsupervised).

The catch 22 of determining your level of probate

You may have noticed a problem though.

It can be hard to know what level you fall into if you can’t access sensitive accounts because you don’t have your letters yet. And an executor can only get the letters by starting probate, which locks you in at the highest level you apply for (i.e. you can start at a lower level and go up in complexity, but if you start at a high level of probate you are stuck there).

It’s a bit of a catch 22: you need information to choose the right probate level, but you can’t get that information until you choose a probate level.

So how do you choose the right level if you don’t know what the estate’s assets are worth? 

There are some tricks.

For example, if there is real estate involved, you almost always qualify for the second level beyond affidavit and usually exceed the small estate option — unless the house is worth a very little amount.

And in general, the lower the level, the more leeway you have with your initial value estimates.

But…

This is why having a system like Atticus makes all the difference. You list everything you have (or know of) , it calculates things up, and then helps give you the right forms you need based on your state.

So if you want to make figuring out what level of probate you need simple, 👉 go here

You could also get a probate lawyer. They are useful, but they also prefer larger estates and are expensive.

Or you can give it your best guess based on what you know about the estate, which can be difficult without a good organizational system / know-how of how probate vs. non-probate assets work.

Regardless of how you go about it, your first steps at probate court will be the validation of the will, figuring out and appointing the executor, choosing your level of probate, and getting the executor getting their letters.

Probate phase 2: Assets, assets, and more assets

After the personal representative gets their letters, they are officially in charge of settling the deceased’s estate. That means they are responsible for everything the state requires. 

Sometimes the first thing an executor does is get a probate bond (also known as a fiduciary bond). Some states require this. Others don’t. All you need to know is that it acts as a form of insurance in case the executor royally messes up the process. 

A screw-up could include distributing assets to beneficiaries without paying off all the estate’s debts — e.g. splitting up precious jewelry instead of selling it to cover the $50k their deceased father owed in medical bills, or it could mean miscalculating the value of the assets and owing more in taxes than they realized. 

Let’s pause here for some important context:

• Executors do get paid. If you’re thinking about how the heck someone does this on top of a job, well, for starters that’s why probate usually takes more than a year (there’s just a lot to do), and next, executors do get paid. They usually take a percent of the estate’s assets, just like a real estate agent gets when they sell a house. This amount is sometimes listed in the will but can also be determined by the court according to local law.
• Any expenses you incur while working as an executor can be paid from the estate. That means any helpful tools, services, etc. you pay for can be covered by the estate and not out of your personal bank account.
• A family, beneficiaries, heirs, etc. are not responsible for their loved one’s debts. For example, if you were settling the estate of someone with $200k in medical bills but they only had $75k in assets available to liquidate in order to pay, in no world would you be liable for that remaining debt. Instead, you have a duty to notify anyone that is owed money by the “estate” (known as the creditors), and then they have an amount of time they can collect on that debt. So if the debts are more than the value of the probate assets you catalog, then you would dissolve the estate after paying those and taxes, and no one in the will would get any of the remaining assets because there aren’t any left. Executors pay the estate’s debts & taxes, and then only what is left over is split between beneficiaries. So unless the executor fails to notify creditors properly and spends the money that should have been paid to creditors on themselves, then the executor is not responsible. And again, preventing that potential failure is why some states require probate bonds.
• You need to open an estate bank account. Part of acting as executor is creating a temporary legal financial framework to operate within as the “estate”. You don’t have to do this, but it’s like setting up a business bank account. By centralizing all of the funds into one account, you make paying taxes way easier and make sure you don’t accidentally mix up any money. To open an estate account, you just apply to the IRS to get an EIN for the estate, which is just an official tax number for the estate. Then, you take that EIN along with whatever other documents the bank requires (usually the death certificate, letters testamentary, etc.) and open an account on behalf of the estate.

Let’s make a list!

Now that the executor has their letters in hand and knows who the beneficiaries are, it’s time to find EVERYTHING of value that the deceased person owned. 

But before you do that, make sure you file the notice to creditors. This is a formal declaration to anyone who is owed money by the estate that the person has passed. This is still usually a posting in the local newspaper of the deceased’s county. 

And by entering that notice into public record, that officially starts a clock (usually a few months but varies by state), which means if the creditors DON’T reach out about the debt by a certain date, then their claims are forfeit! So do this early!

Okay back to the list. 

Your goal is to ultimately create a master list, or report, that you will share with the court, beneficiaries, and any other relevant person. 

The keys to success here are organization, consistent effort, and attention to detail.

Read more 👉  What makes a Good Executor?

Okay, so heads up... this is where it gets a bit hairy—

There are two main categories of assets you need to consider.

1. Probate assets. These HAVE to go through probate, so their values are collectively added and affect the level of probate you have to deal with / the forms within probate you’re responsible for.‍
2. Non-probate assets. These are NOT subject to probate, aren’t tallied up in your grand probate total, and are directly split between beneficiaries (assuming a creditor doesn’t go after them to settle estate debts).

The thing is, some assets can be considered probate or non-probate assets depending on how they were set up, owned, or titled.

Examples of Probate Assets

Let’s start by reviewing some of the most common types of assets that need to pass through probate:

What Assets Must Go Through The Probate Court?

Individually owned assets like:

• Accounts held or titled in single name
• Personal Property/household items including clothing, furniture, books, collectibles, family keepsakes, electronics, cell phones, computers, hard drives, digital cameras.
• Real estate (depending on how it is legally owned)
• Cars, boats, tractors, and other vehicles. 
• Stocks
• Safe deposit boxes

And many, many more specific things that are too long to list here but ARE listed in this difference between probate and non probate assets guide.

What Assets Can Skip Probate Court?

Assets can be classified in slightly different ways depending on where you live, but generally speaking assets outside of the main categories listed above can be considered non-probate assets. 

Assets can also skip probate due to: 

• The type of asset
• The type of account
• Type of ownership & titling
• Because of a statute or law
• Or because of an established contract

It really depends! This is where a lot of the research, time, and energy you will spend goes. It takes a lot of time to figure out how things are owned and whether or not they qualify to be non-probate according to state law.

(that’s why we built Atticus, by the way. The entire system is designed to let you take pictures and add information about various assets, and then boom! We tell you what it qualifies as and what forms you need based on your state. It saves a crazy amount of time and you will not believe you considered trying probate without it. Click here to check that out)

Anyway! Here are assets that are usually considered non-probate assets: 

• Pension & Retirement Accounts like Roth IRAs, 401(k)s, and 403(b)s
• Life Insurance Policies including Universal and Whole Life plans 
• College Savings Plans including 529 Plans and ESAs
• Payable-on-death and transferable-on-death accounts
• Assets properly held in revocable or irrevocable trusts
• Some jointly owned assets
• Assets that fall under small estate thresholds.

‍Same deal here. This is just scratching the surface, so go here to get the full rundown on probate vs. non-probate assets.

Queue your best Spongebob impression here — months, maybe even years later, you’ll have finished this part of the process.  

But why does it take so long? 

Oh gosh. Lots of reasons:

• Government offices are slow
• Having to email / communicate with separate institutions 
• Not even knowing what to do (having to research and google everything)
• Second guessing yourself
• Coordinating keep vs sell decisions with beneficiaries
• Filing notice to all of the creditors
• Locating and filling out forms
• Having to liquidate & sell assets to use for debts or taxes (e.g. selling a house)
  

Probate phase 3: Debts, taxes and closing

By this point you should have:

     ✔️ Filed notice to creditors

     ✔️ All of the assets separated into non-probate vs. probate categories

     ✔️ The values of all probate assets calculated

     ✔️ A list of all the debts owed by the estate and to whom

     ✔️ A report you can send to the court and beneficiaries detailing all this information

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The final few steps

Once you’re here, you need to do a few more things to wrap up this process. First, you need to give that report to the court and beneficiaries. Then, the court will review it and give you the official go-ahead to pay all the debts and taxes the estate owes. You’ll also file a tax return for your estate after paying off any and all creditors. 

Whatever is left after that, you split according to the will/intestacy laws and number of beneficiaries.

Then, you close the estate bank account and officially dissolve the estate. And treat yourself to whatever you like best, because that’s a lot to do. 

‍Phew… 

If you are or plan to be the personal representative or executor, you have a lot to do in front of you, but that’s okay! There are people going through this process all around the world, and there are lots of people ready to help. 

So don’t be afraid to ask your family for help, remember to give yourself space when you need it, use some of the estate’s funds to pay for services that will help, and remember that this is a marathon, not a sprint. 

How to Make Probate as Easy and Painless as Possible

Probate Success Factors‍

• Turn your forms in at the court— in-person!
• Figure out what level of probate you need BEFORE getting your "letters"
• Apply for the LOWEST level of probate you can qualify for
• Show up PREPARED to the court
• Be transparent with all beneficiaries
• Use organizational tools to save time
• Hire a lawyer IF you have a lot of assets, a dispute, or your state requires it
  

Frequently Asked Questions About Probate

Can I avoid probate?

Usually not, but in some cases where the person who passed away had very little, it is possible. Refer to the section in Phase 1 of this probate guide that talks about choosing your level of probate.

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How long does probate take? 

Probate typically lasts 12-18 months! 

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What is the Uniform Probate Code?

The Uniform Probate Code is a set of laws that governs how people pass on their belongings when they die. The code was created in order to make the probate process easier and to create a standard set of rules for wills, trusts, and intestacy across all states. The process of creating the Uniform Probate Code began in 1964, and the final version was published in 1969. 

Some states follow it. Some don’t. Others follow parts of it, but not all of it. And this is why probate is so fractured. We think probate should be standardized and simple (which is why we built a tool that gives you specific probate instructions based on state), but we will likely not see a uniform probate approach in our lifetimes. 

In the meantime, these are the states that currently follow the UPC:

•  Alaska
• Arizona
• Colorado
• Florida
• Hawaii
• Idaho
• Maine
• Massachusetts
• Michigan
• Minnesota
• Montana
• Nebraska
• New Jersey
• New Mexico
• North Dakota
• South Carolina
• South Dakota
• Utah

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How much does probate cost?

It really depends, but it usually averages out to around $14k, but remember that the money comes from the estate’s existing funds. 

• Usually 5% of the estate goes to the executor. 
• ~0.5% of the bond value goes to the bond company 
• Court filing fees that vary but usually are a few hundred dollars
• Attorney fees (if you use them) — easily a few grand.
• Filing notice to creditor fees (newspaper announcement)
• Any bank account fees when opening and closing the estate account 
• The time and opportunity cost of all the time you spend working on probate

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What are probate courts?

Probate court is a part of the judicial system that deals with things like wills, estates, conservatorships, and guardianships. It also deals with people who have psychiatric disabilities and need to be committed to an institution. If there is a problem with a will, for example, probate court decides if the will is real and if the person who signed it was thinking clearly. Probate court also decides who gets which part of the person's assets, based on what is written in the will or other laws.

Where do I get the forms I need?

While you can get your forms from the courts, the easiest way to get all the forms you need is with our online form library. You can search for any form you need by asset type and use across the entire country. 

Access that form library here.

Do I need a probate lawyer?

That really depends. You don’t have to get one unless your state and situation requires it by law, but in general, the larger, more complex your estate, the more useful they will be. 

Here are a few other things to consider when thinking about hiring a lawyer:

• Are you already fighting with your siblings/have any bad relationships?
• Are the assets really complicated? 
• Is there a well set-up trust or is it all over the place? 
• How big is the estate?
• Is the will detailed or is it a big estate with a shallow will?
• Do you want to spend extra money to get through this quicker? 

What if I don’t live in the same state as the deceased?

If you don’t live in the same state, you may have to post probate bond or appoint a “resident agent” that can act on your behalf. Kind of like a lesser version of giving someone power of attorney. This will help you avoid having to take too many trips back to the jurisdiction. 

In short, you don’t usually have to live in the same state, but it helps. 

Probate Tools and Resources

You’ve probably realized by now that this is a whole world, but don’t worry, you will get through this, and we have lots of tools and resources you can use to save time and money. 

Here are a few: 

• Atticus — tool that tells you every step you need to take based on your unique estate (yes this is us!)
• List of Probate Courts by State (find your court)
• Probate Form Library
• Glossary of all Probate Terms
• Asset Calculator 
• Checklist of steps to take after someone passes away 
• Master Guide of Probate vs. Non-Probate Assets

Probate is a lot of work. Why wouldn’t you use something that gives you bite-sized steps to take based on your unique estate?

Skip becoming a quasi-lawyer and use Atticus instead. We give you the exact forms you need by state, automatically generate the reports you need to give to the court and beneficiaries, have easy calculators that add up your assets, can sync directly with online bank accounts, and more — believe us, with or without a lawyer Atticus makes all of this feel SO manageable! 

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