Understanding Probate

Probate is the legal process that transfers title of assets from the person who died to the people named in the will, if there was a will, or to his or her heirs as dictated by statute if there was no will. If there was a will, the probate is called a testate estate. If there is no will, it is called an intestate estate.

There are three types of probates:

1. Small estates (under $74,000 in 2022) and no real property.
   Whether or not you have a will when you die, if you have $74,000 or less in personal property (including bank accounts and cash) and no real property, your beneficiaries or heirs may collect your assets by using an affidavit and will not need to open a probate action through the court.
2. Uncontested estates (informal).
   The informal process is generally allowed when there is a valid will or there is clearly no will, no contests are expected, and there is a qualified person ready to act as personal representative. In this situation, Court involvement is limited.
3. Contested estates and invalid or questionable wills (“formal”).
   A formal probate may be required for several reasons, including when a will is contested, unclear, invalid, or when there are apparent or actual significant challenges (i.e., identifying heirs, property title disputes). The court may require that the personal representative get approval for every transaction or may allow the personal representative to administer the estate unsupervised.

Both informal and formal probates must be open with the court for at least six months, but full administration of the estate may take much longer. All wills and intestate estates must be probated, but the degrees of court involvement and complexity range from simple and inexpensive to complicated and costly.