Probate
Probate is the court-supervised legal process through which a deceased person's will is validated, their debts are settled, and their remaining assets are distributed to heirs according to the will or, in the absence of a will, under state intestate succession laws.
When a person dies, assets titled solely in their name and lacking a beneficiary designation or survivorship provision must pass through probate before heirs can receive them. The probate court validates the will, appoints an executor (or administrator if there is no will), ensures creditors are paid, and oversees the distribution of remaining assets. This process provides legal finality — once probate closes, title to assets is clear and creditor claims are extinguished.
The cost of probate varies by state but can be substantial. California, for example, sets statutory attorney and executor fees as a percentage of the gross estate — not the net — meaning fees accrue on a $1 million home even if $800,000 is owed on a mortgage. Attorney fees, court filing costs, appraisal fees, and executor compensation can collectively consume 3% to 7% of the estate's value in complex cases.
Duration is another drawback. Simple estates may close in three to six months, but contested wills, disputed debts, real estate in multiple states, or business interests can extend the process to two years or more. During this period, beneficiaries may have limited access to estate assets, even for pressing financial needs.
Privacy is a third concern. Probate proceedings are public records. The will, the inventory of assets, and the names of beneficiaries are accessible to anyone who searches the court records — a concern for families who prefer discretion.
Probate avoidance strategies — living trusts, joint tenancy with right of survivorship, beneficiary designations, and payable-on-death accounts — are widely used precisely because they allow assets to transfer quickly, privately, and without court involvement. However, not all assets can or should avoid probate, and some states have simplified small-estate procedures that reduce the burden for modest estates.