Why Is Probate Necessary if There Is a Will?

By Laura Wallace Henderson

State laws regulate the probate of estates. Probate is the judicial process that provides legal supervision of estates after the death of an individual. If you leave a will at the time of your death, the probate court will help ensure that your final wishes receive due consideration. The probate process can be very involved and drawn out, especially in complex estates and instances where individuals contest the legitimacy of the will.


While a will provides instructions for the division of an estate, including the guardianship of minors, distribution of personal belongings and division of financial assets, probate protects the rights of creditors and entitled beneficiaries. Probate courts can help determine the validity of a will and claims against estates. As long as you hold belongings in your name at the time of your death, your estate must go through probate, regardless of the existence of a will. However, if you die without a will, the court can decide who to appoint as the administrator of your estate, who to designate as the guardian of your children, and how to divide and distribute your assets.


Certain belongings may pass to others without specific provisions in your will. These items include jointly held real estate holdings that pass directly to the survivor, as well as certain insurance policies, retirement accounts and investments. By naming individuals as TODs, or transfer on death designees, you allow the financial institution or insurance company to distribute the amount in your accounts to the individuals you name as beneficiaries.

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Opening an Estate

Filing the original will and certified death certificate starts the probate process. The court assigns a case number for the estate proceedings and legally appoints your executor to perform the necessary duties involved in administering your estate. The court provides legal documentations, known as letters of testamentary, allowing your executor to manage your assets and pay your debts.


After probate begins, your estate goes through a series of steps. These may vary depending on your state’s laws, the provisions in your will, and the complexity of your estate. In most cases, your executor must compile an inventory of your assets, pay any legitimate claims filed against your estate, pay taxes, liquidate real estate and investments, and distribute your belongings according to your instructions. If you leave behind minor children, probate proceedings will include legal actions to place your children under the care of guardians. In some cases, probate courts must settle disputes regarding the validity of your will or specific provisions contained within your will.

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Instructions for Executors of Wills


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Estate Administrator Duties

When a person dies, his estate will likely go through the probate process, whether or not he left a will. During probate, the estate will be collected, debts paid and remaining assets distributed to beneficiaries. The person assigned the duty of managing the estate through this process is called an administrator or executor. Since state statutes govern estate administration, the administrator must follow state law regarding procedures and time frames.

Components of a Legal Will

While thinking about your death may not appeal to you, estate planning is an important part of managing your assets. Creating a will allows you to provide instructions regarding the division of your belongings at the time of your death. An attorney who specializes in estate planning can help you navigate through the laws and procedures that govern wills in your state.

Process of a Will in Probate

Your last will and testament allows you to designate the division of your assets, including items such as real estate, personal belongings, cash and stocks. If you die with assets in your name, your will goes through a formal process known as probate. The probate process and costs may vary depending on the state you reside in at the time of your death, your assets, debts and whether anyone contests your will.

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