Death is hard enough. But when someone passes away, a quiet storm often brews behind the scenes—a mix of legal paperwork, financial decisions, family emotions, and uncertainty. At the center of it all is a process called probate, and if you’ve ever had to deal with it, you know it’s not always simple.
So let’s walk through it together.
Probate isn’t just a legal term that estate planning attorneys in Florida throw around. It’s a process that decides what happens to everything a person owned once they’re gone. Let’s start with what probate is—and why it matters. If you’re wondering about probate—what it is and how it works with and without a will—you’re in the right place.
What Exactly Is Probate?
Probate is the legal process after someone dies to settle their estate. In plain English, it’s the court’s way of ensuring everything gets wrapped up the right way—debts are paid, assets are passed on legally, and nothing (or no one) falls through the cracks. The probate court ensures that the deceased person’s estate is handled correctly.
If the person left a will, probate is where the court verifies that it’s valid. If there’s no will, probate becomes the process of figuring out who inherits, based on state law, often guided by intestate succession laws.
Either way, it serves as a legal roadmap for closing the chapter on someone’s financial life. The probate process begins once the court receives the decedent’s death certificate and any required documentation.
Some people hear “probate” and picture lengthy court hearings and feuding siblings. Others don’t think about it until they’re knee-deep in paperwork and wonder why it’s taking months to access their parents’ checking account.
The truth? Probate is often misunderstood. It’s not inherently evil—it’s just slow, structured, and occasionally frustrating. But with the proper understanding, it’s manageable. And with smart planning, it’s often avoidable.
Common Misunderstandings About Probate:
“If there’s a will, we skip probate.”
False. A will still needs to go through the probate process to be validated, even when an executor named in the will is ready to act.
“The state takes everything if there’s no will.”
Rarely. The state only claims an estate if no legal heirs can be found. Usually, the court follows intestate succession to locate rightful heirs.
“Probate always takes years and costs a fortune.”
Not necessarily. Some probates are quick and inexpensive, and others, not so much. It depends on the estate’s size, complexity, and preparation and whether it qualifies for a simplified process.
Why Probate Happens (and When It Doesn’t)
Not every estate goes through probate. Whether it does depends largely on what assets the person owned, and how they were titled.
For example, if someone owned a house in their name alone, that house usually goes through probate. Same goes for a bank account with no beneficiary listed, or a car registered solely in their name. These are what we call probate assets—things that need the court’s blessing before they can be passed on.
But many assets bypass probate altogether. If a person named a beneficiary on their retirement account, that money goes straight to the beneficiary—no court involved. The same is true for life insurance policies, jointly owned property, or accounts with a “payable on death” designation. These are non-probate assets, and they transfer automatically upon death.
It’s also worth noting that many states offer a simplified process for small estates, often when the total value is under a certain threshold. If the estate qualifies, probate might be skipped entirely or handled with just a few forms, sometimes avoiding full probate court proceedings.
And what if someone dies with almost nothing? It happens more than you might think. If there aren’t enough assets to justify a probate case, the court may do very little, if anything at all. Read here how to avoid probate pitfalls for a smooth process.
What Happens If There Is a Will?
If the deceased left a will, it becomes the backbone of the probate process. It’s the legal document that outlines who gets what and who is in charge of ensuring it all happens.
Let’s say your loved one left a valid will. That’s great—it means they took the time to spell out their wishes. But the will doesn’t magically enforce itself. It has to go through probate to be recognized and carried out legally.
Step 1: Validate the Will
The probate court reviews the will to confirm it meets legal standards, i.e., it’s signed and witnessed (where required), and it reflects the true intent of the deceased. A death certificate is also submitted at this stage.
Step 2: Appoint the Executor
The will typically names an executor who will manage the estate. The court formally appoints them and gives them legal authority to act. This executor is also known as the personal representative, and they play a key role in the estate administration process.
Step 3: Inventory and Appraisal
The executor gathers and documents all assets, from real estate to personal items to financial accounts. These include bank accounts, real property, personal property, and other estate assets. Some may require formal appraisals.
Step 4: Notify Creditors
Creditors must be notified so they can submit claims. The estate is responsible for paying off valid debts before distributions to heirs. All the debts, including outstanding debts, are accounted for during this phase.
Step 5: Pay Taxes and Fees
Any applicable taxes—state, federal estate tax, or property tax—must be paid, along with court and legal fees. If required, a probate bond may be posted.
Step 6: Distribute Assets
Only after debts and taxes are settled can the executor distribute assets according to the will. This includes distributing remaining assets and ensuring all beneficiaries receive their share of the decedent’s estate.
What If There’s No Will? (Intestate Estate Succession)
When a person dies without a will, it is called dying intestate, and it means the court steps in to make some big decisions about the deceased’s assets on behalf of the deceased.
First, it appoints someone—often a close family member—to serve as the estate’s administrator (similar to an executor, but court-chosen). This estate administrator steps into the role of personal representative and is responsible for handling the deceased person’s property and all the assets.
Next, the court examines the state intestacy laws to determine who inherits. These laws follow a strict hierarchy: typically, spouses and children come first, followed by parents, siblings, nieces and nephews, and more distant relatives. Romantic partners, lifelong friends, or stepchildren? They’re not usually on the list unless they’re legally adopted or married.
If the deceased’s spouse survives them, they may receive a large portion or all of the estate, depending on the rules of intestate succession. These rules vary depending on whether assets are considered separate property or community property.
The biggest risk when there’s no will? Family conflict. Without clear instructions, emotions run high, assumptions take over, and arguments can erupt over who deserves what. Probate without a will is rarely fast and often messier. Probate process without clear guidance increases the risk of delays and disputes in allocating the decedent’s property.
What Does Probate Cost?
Let’s be honest: probate isn’t cheap.
While the exact cost depends on where you live and how complex the estate is, there are several standard expenses to expect. These can include court filing fees, attorney’s fees, executor compensation, appraisals, accounting costs, and even the cost of publishing legal notices in newspapers.
Most of these costs come out of the estate itself. That means if the estate is worth $500,000 and probate costs $25,000, heirs are splitting up what’s left, not the full amount. This is especially relevant when the probate estate is large.
In some states, attorney fees are based on a percentage of the estate’s value. In others, they’re billed hourly. And if the process drags on—or if there are disputes—it’s not hard for costs to balloon, especially if you need to hire a probate attorney to resolve disputes or handle complex legal questions.
That’s why many people look for ways to avoid probate altogether. And yes—there are ways to do that.
Avoiding Probate: Is It Possible?
Here’s the good news: thoughtful planning can often minimize or even bypass probate completely while protecting the decedent’s assets.
One of the most powerful tools? A revocable living trust. When you place assets into a trust, they’re no longer considered part of your “probate estate.” That means those assets can be distributed directly to your beneficiaries when you pass away—no court process required.
Other probate-avoidance tools include joint ownership (like owning a home with your surviving spouse), naming beneficiaries on retirement accounts and life insurance policies, using payable-on-death accounts, or creating transfer-on-death deeds for real estate.
These strategies save time and money and can also protect privacy. Probate is a public process, but trusts and direct transfers are private.
Of course, not everyone needs a trust. But everyone benefits from reviewing their estate plan regularly—and understanding what will, and won’t, go through probate.
Next Steps: Protect Your Legacy
If you’re planning your own estate, think about your goals. Do you want to keep things simple for your family? Avoid court delays? Reduce costs? Minimize the risk of family drama?
If you’re dealing with a loved one’s estate, take a breath. Start by gathering documents, locating the will (if there is one), and getting a clear picture of the assets involved. Talk to a probate attorney if needed—especially if the estate is large, complicated, or there’s tension among heirs.
And if you’re somewhere in between—just trying to educate yourself before the time comes—you’re already ahead of the curve.
Probate, while often overlooked, touches nearly every family at some point. Understanding how it works—and how to navigate or avoid it—can make a world of difference when it matters most.
That’s where Giles & Robinson come in. With deep experience in estate planning and probate, we help families plan, find clarity, and confidently move forward. Whether preparing for the future or facing it now, we’re here to support you every step of the way.
Plan Confidently With Giles & Robinson
At Giles & Robinson, we guide families through probate and estate planning with clarity, care, and decades of experience. Whether you’re creating a plan or navigating a loved one’s estate, our team is here to make the process as smooth and stress-free as possible. Contact us today and let’s protect your legacy—together.
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