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How Probate Works

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Probate ensures that many of the assets in an estate are legally transferred to creditors and heirs. An executor — appointed by the decedent’s will or by a court — oversees the process, which can take six months or longer, depending on factors such as the estate’s size and state laws. Probate is particularly important for assets with legal titles, such as real estate and financial accounts.

The process varies by state but generally begins when the executor files the death certificate and submits the will, if one exists, to the court. At the same time, the executor petitions to start probate. If approved, the court grants the executor the authority to administer the estate, allowing them to inventory assets, determine outstanding debts, and notify beneficiaries.

The order of these steps is important

Before any assets can be distributed to heirs, the estate must first settle debts, bills, and taxes using available funds. Once these obligations are met, the executor requests court approval to distribute what remains according to the will. The final step is closing the estate, which officially completes the probate process.

Not all assets must go through probate. Life insurance policies and retirement accounts may transfer directly to beneficiaries named by the owner. Similarly, jointly owned real estate, financial accounts, and business assets with co-owners bypass probate if held in joint tenancy with rights of survivorship or tenancy by the entirety. Assets placed in a living trust also transfer without probate to named beneficiaries or co-owners.

Property solely in the deceased’s name — such as real estate, vehicles, jewelry, furniture, and collectibles — typically requires probate. Assets jointly owned by multiple people must also go through probate if held as tenancy in common, as each owner’s share is passed through their estate rather than directly to co-owners. Even assets such as life insurance and retirement accounts may require probate if no beneficiary is named or if the named beneficiary has predeceased the account holder.

If there is no will, probate is still required, but the process follows state intestacy laws. These laws determine who inherits the estate, who cares for minor children, how debts are handled, and who manages the estate. Without a will to guide distribution, the process may take longer as the court appoints an administrator to handle estate matters.

Avoiding probate

There are a few ways to reduce or bypass probate:

  • Create a living trust; this allows assets to transfer directly to beneficiaries.
  • Establish joint ownership with rights of survivorship; this ensures that property automatically passes to the co-owner.
  • Make bank accounts payable-on-death or transfer-on-death accounts, allowing funds to be accessed immediately upon death.
  • Give assets to family, friends, or charitable organizations during your lifetime, which removes them from your estate. However, be cautious that the gifts are not so large that they become subject to federal gift tax.

A qualified estate planning attorney can provide guidance on the best options for your situation. If you don’t want your family to go through the hassle of probate, contact our Sonoma County, CA office. We hold frequent free educational workshops for you to get your questions answered and understand all your options. Register for an upcoming workshop by clicking here.

Miranda Dressler
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