How The Probate Process Works

After someone has died, the person named in his or her will is usually appointed as executor. If there isn't any will, or the will fails to name an executor, the probate court names someone — called an administrator — to handle the process. The administrator is most often the closest capable relative, or the person who inherits the bulk of the deceased person's assets. An executor (probate with a will) and administrator (probate without a will) are also referred to as a "personal representative."

The personal representative must find, secure and manage your assets during the probate process, which commonly takes about a year. Depending on the contents of the will, if any, and on the amount of the debts, an executor may have to decide whether or not to sell real estate, securities or other property. For example, if the will makes a number of cash bequests but the estate consists mostly of valuable artwork, the collection might have to be appraised and sold to produce cash. Or, if the deceased person has many outstanding debts, the personal representative might have to sell some of the property to pay them.

In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on. Eventually, the court will grant the personal representative permission to pay the debts and taxes and divide the rest among the people or organizations entitled to them, as determined in the beginning of the probate process. Ultimately, property will be transferred to its new owners.

Does All Property Have To Go Through Probate When A Person Dies?

No. Most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure. In California, for example, you can pass up to $150,000 of property without probate, and there's a simple transfer procedure for any property left to a surviving spouse.

In addition, property that passes outside of your will — say, through joint tenancy or a living trust — is not subject to probate.

If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.