Why Do Estates Go to Probate When Someone Dies? Understanding the Necessary Evil

In the midst of grief and emotional turmoil when a loved one dies, families often have to go through the difficult process of probate. After someone dies, many people wonder why their estates have to go through this sometimes long and expensive legal process called probate. Today, I’m going to explain what probate is, why it happens, and if it can be avoided in simple terms.

What Exactly Is Probate?

Probate is essentially the legal process that takes place after someone dies to authenticate their will (if they left one) and oversee the proper distribution of their assets It’s a court-supervised procedure that ensures debts are paid and remaining assets go to the right beneficiaries

You can think of probate as the official “changing of the guard” for someone’s things and property. Without this process, there would be no legal way for the heirs of a deceased person to take over ownership of their assets.

Probate With a Will vs. Without a Will

A common misunderstanding is that having a will means you don’t have to go through probate. That’s not necessarily true. Let me explain the difference:

When there is a will:

• The deceased person is called a “testator”
• The executor named in the will initiates the probate process
• The court verifies the will’s authenticity
• The executor inventories assets, pays debts and taxes, and distributes remaining assets according to the will

When there is no will:

• The person is said to have died “intestate”
• The court appoints an administrator (similar to an executor)
• State laws determine how assets are distributed, typically following a hierarchy:
  • Surviving spouse
  • Children
  • Other relatives

As you can see, probate happens either way – the main difference is who controls the process and how assets are distributed.

Why Does an Estate Have to Go Through Probate?

Now for the big question: why is probate necessary in the first place? There are several important reasons:

1. To Provide Legal Authority for Asset Transfers

It’s still possible for someone to own bank accounts, property titles, and other things after they die. By law, these can’t be given to family members without the right paperwork. Probate gives the executor or administrator the legal right to give these things to someone else.

For example, if your mom owned her house and left it to you in her will, any buyer of that house would want proof that:

• The will is legitimate and final
• Your mom hadn’t changed her mind
• You have the legal right to sell it

Probate provides that proof in the form of a court document.

2. To Settle Outstanding Debts

The deceased person’s estate is responsible for paying their remaining debts before assets go to beneficiaries. Probate ensures creditors have a fair opportunity to make claims against the estate.

Creditors typically have a limited time (about one year) to make claims. If the executor rejects a claim, the creditor can take it to probate court, where a judge will decide if it’s valid.

3. To Protect the Rights of Beneficiaries

Probate helps ensure that the deceased person’s wishes are carried out correctly and that beneficiaries receive what they’re entitled to. It provides a supervised process where disputes can be resolved.

If there’s a question about the validity of a will (like whether the person was mentally competent when they signed it), probate offers a forum to address these issues.

4. To Handle Tax Obligations

The executor must file the deceased’s final income tax return and pay any estate taxes due. Probate ensures these tax obligations are met before assets are distributed.

Do You HAVE to File for Probate?

Here’s an interesting fact: technically, there’s no law that requires an executor to file for probate. However, not filing can create significant problems:

1. Assets remain frozen – You can’t legally transfer property or assets still in the deceased’s name without probate
2. Potential lawsuits – Heirs could sue if they don’t receive their rightful inheritance
3. Unresolved will issues – Any questions about the validity of the will remain unanswered

Let me be clear: while probate filing isn’t legally mandated, the consequences of not filing can be serious. In most situations, you’ll need to file for probate to properly settle an estate.

When Is Probate NOT Needed?

Probate isn’t always required. Several factors determine whether probate is necessary:

Small Estates

Many states have simplified procedures for small estates. For example, in Texas, estates valued under $75,000 may skip probate. Instead, heirs might claim assets using alternative legal actions like an affidavit.

Jointly Owned Assets

When assets are owned jointly with “right of survivorship,” they automatically pass to the surviving owner. Common examples include:

• Joint bank accounts
• Real estate owned as “joint tenants”
• “Tenancy by the entirety” property (between spouses)

These assets bypass probate entirely.

Assets With Designated Beneficiaries

Many financial assets allow you to name beneficiaries who will receive the asset directly upon your death:

• Life insurance policies
• Retirement accounts (401(k)s, IRAs)
• Transfer-on-death (TOD) bank accounts
• Payable-on-death (POD) designations

These assets pass outside of probate because the beneficiary designation acts like a mini-will for just that asset.

Trust Assets

Assets held in a trust don’t go through probate. This is one of the main reasons many people establish trusts as part of their estate planning.

Real-Life Examples of Probate Situations

Scenario 1: The Family Home

When your dad dies and leaves the family home to you and your siblings in his will, probate is typically required. The home is still in your dad’s name, and the court needs to authorize the transfer of ownership.

Scenario 2: Joint Bank Account

If your mom and dad had a joint checking account with right of survivorship and your dad dies, that money automatically belongs to your mom. No probate needed for that account.

Scenario 3: Paying for Funeral Expenses

When someone dies and you need to pay for their funeral, but their bank accounts are frozen, what can you do? Most banks will pay the funeral bill directly from the deceased’s account if you provide them with the bill.

The Cost of Probate: Why People Try to Avoid It

Let’s be honest – probate can be expensive and time-consuming. The costs include:

• Court fees
• Attorney fees (which might be hourly or a percentage of the estate)
• Executor fees
• Publication costs (to notify creditors)
• Appraisal and accounting fees

Depending on the estate’s complexity and your state’s laws, probate can take anywhere from a few months to several years. During this time, beneficiaries are waiting for their inheritance.

This is why many people try to structure their estates to minimize or avoid probate when possible.

How to Avoid or Minimize Probate

If you’re planning your own estate or helping a loved one, consider these strategies to reduce the impact of probate:

1. Create a Living Trust

A trust is one of the most effective ways to avoid probate. Assets transferred into the trust during your lifetime aren’t part of your probate estate when you die.

2. Use Joint Ownership

Adding a joint owner with right of survivorship to property means it will pass automatically to the surviving owner.

3. Designate Beneficiaries

Make sure all financial accounts, insurance policies, and retirement plans have current beneficiary designations.

4. Make Lifetime Gifts

Assets you give away during your lifetime aren’t part of your probate estate (though be aware of potential gift tax implications).

5. Use Transfer-on-Death Designations

Many states allow transfer-on-death designations for vehicles, securities, and even real estate.

Common Questions About Probate

“My mum made a will, so why do we need probate?”

A will doesn’t avoid probate – it simply provides instructions for how to handle the probate process. The will needs to be validated by the court before it can be executed.

“When my dad died, we didn’t need probate. Why?”

If assets were held jointly or had named beneficiaries, probate might not have been necessary. Or if the estate was small enough, your state may have allowed a simplified procedure.

“Can I avoid probate by giving assets away before I die?”

Yes, giving away assets during your lifetime can reduce what goes through probate. However, be cautious about:

• Losing control of your assets
• Potential gift tax implications
• Conflicts with your will

“What if we find a later will after probate is complete?”

This requires legal help. You’d need to apply to have the grant of probate “revoked” (cancelled) and a new grant with the later will issued. If there’s a dispute about which will is valid, you’ll definitely need a lawyer.

Final Thoughts

Probate exists for good reasons – to ensure debts are paid, assets are properly distributed, and the deceased’s wishes are honored. While it can be a cumbersome process, understanding why it’s necessary can help you navigate it more effectively.

We always recommend consulting with an estate planning attorney to determine the best strategies for your situation. With proper planning, you can minimize the impact of probate on your loved ones after you’re gone.

Have you had experience with probate? Was it simpler or more complex than you expected? We’d love to hear your stories in the comments below.

Disclaimer: This article provides general information and should not be considered legal advice. Laws vary by state, so consult with an attorney for guidance specific to your situation.