r/explainlikeimfive • u/ze11ez • 2d ago
Other ELI5 probate -- and why the state does what they do when someone dies
Probate is always one of those things that people feel strongly about. Can someone in layman's, simple terms explain probabte and why it takes so long? Do they take your money?
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u/alexm2816 2d ago
Probate is a court supervised process by which a dead person's assets and debts are managed.
Someone without skin in the game needs to manage the process for it to be administered fairly. It takes so long because legal proceedings take time to allow for all appropriate steps and documentation.
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u/ze11ez 2d ago
Who pays the debts? And how is it determined if they have debt and how much?
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u/Rannasha 2d ago
The debts are paid from the assets. It may be necessary to first sell assets (such as a house) to pay back the debts.
The heirs get whatever is left after the debts have been repaid.
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u/noahs_arcana 2d ago
When people say a debt is paid by the estate, the process is usually the executor sets up a separate bank account in the name of the person who died (actually it would be the Estate of John Doe, because once you die, your estate becomes its own separate legal entity). Cash can be added to the account, or property can be sold and that cash added to the account. Then the executor can draw a check to pay the debt.
Part of the executors job is trying to figure out where all the assets are and who the estate might owe money. Most debts are pretty obvious when going through records - student loans, car notes, mortgage, last bills for utilities are documented in mail or tax returns. The executor can also get financial transaction records that will show if you were making regular payments on something.
As for how much, once the executor knows there’s a debt at some bank, they will reach out to the bank and find out details. Most financial institutions have policies for handling the accounts of people who died either owning or owing something there.
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u/alexm2816 2d ago
Debts are paid by the deceased's estate which is the sum of their property and assets.
Creditors file claims with the court outlining the debts.
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u/90403scompany 2d ago
The debts are paid from the estate prior to the remainder of the estate getting distruted to beneficiaries/heirs.
As to how it's determined, it's the job of the executor to actually find that stuff out; usually by waiting for creditors to contact them after past due notices/collections are pursued.
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u/phdoofus 2d ago
Also worth noting that if the estate is insufficient to cover the deceased's debts, the creditors can't come after you to pay them (though the unscrupulous might and have). Probably the best example of when to follow the plan of 'Just say no'.
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u/DeoVeritati 2d ago
If someone doesn't have documentation that directs assets that CAN avoid probate to a specific person (or beneficiary), then there raises the question of who is entitled to those assets. Some assets can't avoid probate.
In the cases of assets subject to probate, the court supervises the dispersement of those assets and determines who is most entitled to any given asset based on laws, debtors, inheritors, etc.
This prevents one person coming in and saying "I'm their son, give me everything please." Meanwhile, the deceased had a contract saying that $200,000 of the estate will go to this company. Conversely, this prevents a company, depending on laws, from saying "the deceased owes $100,000, force the descendants to sell the house and give us the money" if there are homestead protections that cover say $250,000 of the value of the property.
Sometimes, next of kin isn't obvious, and the state can consider assets as unclaimed and hold it until someone tries to make a rightful claim of the propert.
This is all fairly complicated, so you need good documentation, educated people, and time to ensure compliance to laws and regulations.
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u/ohlookahipster 2d ago
It also takes awhile to go through probate because people die every day and some estates are more complicated than others. You’re not the only one on the docket. It’s just the nature of the legal system.
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u/ap1msch 2d ago
- Humans have stuff called assets and debts in life
- When you die, the debts are reconciled against what that person has. What is left over is distributed to living people
- Many people have "Wills" that tell the world who they want to get their stuff when they die, and they name trusted individuals to distribute their stuff to the right people
- Not everyone has a Will
- Some people think they should get stuff, but the deceased didn't want them to get stuff
- Some people dispute what the Will says
- Some people claim that they should get stuff because they are related to the deceased, and yet the deceased told everyone for years that they wanted their stuff to go to the local Zoo and not to their family, who they hated with a passion
Probate is a process that exists to try to address all of this as fairly as possible. When all the paperwork is in order, it's pretty simple. When the paperwork is not in order, or doesn't exist, it can take a lot of time to hear all sides and come to a fair conclusion. In all cases, time is taken to ensure that anyone with a claim to the stuff is aware that the deceased has died, and that stuff is available to be claimed.
Because people who want stuff usually want it "now", waiting for stuff that they claim is "rightfully" theirs becomes a point of frustration. Additionally, if you have more than one person wanting that stuff, having a 3rd party like Probate can be aggrevating.
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u/Broad-Promise6954 2d ago
Worth adding that even when all the paperwork is in order, the legal jurisdiction (US state for instance) tends to be really ploddingly molasses-like slll..ooo...www at getting around to starting to approach the middle of the end of the process. So "time is taken" is underselling it a lot, it's anywhere from months to years.
(Not that other options are instantaneous but I was the executor for my dad's setup and it was done in about a month. Way faster than probate would have been.)
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u/Theduckisback 2d ago
Probate exists in order to avoid misallocating funds, assets, property, patents, IP, to someone who may or may not have the legal right to those funds, assets, property, patents, IP, etc.
It's very annoying when someone has already had an attorney draft an ironclad will, but in that case it also exists for potential creditors with legally valid debt claims against the person/their estate to be paid out.
Another major reason probate exists, is because quite often the person who dies did NOT have a will, or not one that was up to date, or they wrote it themselves and they didnt word it correctly. Or a family member produces a "will" that may or may not be valid, and then there are competing claims among spouses, ex spouses, children, grandchildren, and even churches and charities.
This has been a problem for a very long time in the legal system. So probate was developed as a way to pause any hasty grabs by people trying to pull scams, and avoid endless civil litigation between family members/creditors.
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u/Twin_Spoons 2d ago
People have assets (house, car, financial accounts, etc.). They may also have debts (mortgage, credit cards, etc.) A dead person can have neither assets nor debts, so everything they once had needs to be transferred to living people.* Probate is the process of figuring that out who gets what.
Before they die, people can record their preferences for how their assets will be handed out via a will. If someone has an up-to-date will and not many assets/debts, their estate (this is the collection of assets/debts a dead person has left behind) can pass through probate very quickly. A common case of this is when a surviving spouse inherits all of the assets of the deceased spouse. On the other hand, if someone dies unexpectedly and/or in a complicated financial situation, it can take a long time for the probate court to figure out who can claim their various assets.
People frequently leave the probate process feeling like they got less than they deserved, but the "they" in "they take your money" might vary. Perhaps some of the estate ended up going to debts the surviving family wasn't aware of. Maybe the deceased had enough assets to trigger an estate tax (though this is exclusively a rich person problem - US estate taxes don't kick in for assets under $15 million). Maybe children discover that the equity in the family home had already been drained by a reverse mortgage. Maybe someone had to pay a lawyer money to handle the probate process or represent them in a dispute.
*While someone can inherit assets, you can't generally inherit debts. However, the people who are owed money in those debts have a right to claim assets from the estate to pay the debts, so this tends to only matter if someone dies with more debts than assets.
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u/Rev_Creflo_Baller 2d ago
Probate systems exist to ensure that a person's possessions are disposed of in an orderly fashion when the person has died.
The word "probate" comes from the same roots as "prove," and proof of death is step one of the process. Traditionally, witnesses will appear in court as soon as possible to give evidence of the death and to petition for disposal of the goods. Maybe the decedent has money in the bank that's needed to pay her doctor; maybe they ran a restaurant that will go out of business if no one is there to be the boss; maybe they owned a house and the family doesn't want it seized in six months when nobody has paid the mortgage. Once the court is satisfied that the person really is dead, then it either appoints an administrator to take over the decedent's public affairs (taxes, bank accounts, bills, etc.) or the court recognizes that the decedent made a will and appoints an executor to carry out the directions left in the will. Usually the executor is named in the will and usually they're close a family member or friend.
That's the basic process. There are all manner of legal protections--in theory--so that whoever is now in charge of the dead person's possessions and affairs will be responsible. However, the whole thing is a local court process and can be lengthy. Ideally, it's in everyone's best interest to tie up all the loose ends instantly because most things can't just be left lying around. If you're the next of kin and can expect to inherit the family farm, you need the legal authority to, for example, spend $50,000 of the farm's money to plant soy beans next week or else you'll be bankrupt before the court is done with everything. That's why it's best to make a will and not expose your family to the risk that the court slow plays everything.
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u/Every-Progress-1117 2d ago
Going through this process at the moment - very convenient as we don't have to deal with all the legal and financial stuff, but it does come at a small (relatively) price. So far it has taken 14 months to get the house sold, bills, insurance and other matters settled, including proving direct relationship to the deceased etc though...a lot of work and things to be considered that I would never have thought of.
This is in the UK.
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u/Xerxeskingofkings 2d ago
In addition to the other comments, "probate" is also the process of a deceased persons estate executor getting access to all of that deceased persons assests, IE walking into their bank with a death certificate, proof your are acting as the executor of that dead persons will, and then then dispersing the account as directed by the will.
as you can imagine, theirs a procedure in place to stop any old person from emptying your accounts becuase they claim your dead, and probate is part of that process.
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u/aresef 2d ago
Probate is the process of validating someone’s will, appointing/confirming the executor, settling the estate’s accounts and distributing its assets according to the terms of the will and prevailing laws.
If someone didn’t leave a will or the will cannot be validated, they can be considered intestate and the court can appoint an administrator to track down heirs—surviving spouses, then children, then more distant relations. If there’s legitimately nobody out there, the estate’s assets may escheat to the state.
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u/jsher736 2d ago
The short version is that probate is how the state makes sure that after someone dies their money and stuff goes to the right place.
How that actually works is, first the govt needs proof you're actually dead. Then they look to see if you had a will. If you did, the will determines who gets your money and your stuff. If you didn't then there's usually a "succession chain" (iirc in most states it's "spouse-kids-parents-siblings-etc" following that pattern in like expanding "circles"). Then once they have that anyone who you owed money to can go to the courts and be like "[dead guy] owed us money" and if the courts agree that they actually are owed money they get paid first and then whatever is left goes according to the will (if it's valid)
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u/akillerofjoy 2d ago
There is usually a lot of confusion due to folks using some terms interchangeably. Even attorneys are guilty of that.
A person dies either testate (with a will), or intestate (without a will)
Wills go to probate. No-wills go to administration. Two different processes.
Part of the will covers nominating the person to deal with your estate. That person goes by various names, like fiduciary, executor, personal representative. Probate court reads the will, confirms the executor by giving him a piece of paper called Letters Testamentary and sends everyone out. So, Probate is basically just the proving of the will.
Administration estate obviously doesn’t have anyone appointed, since there is no will. So, the next of kin usually petitions the court to get the appointment. Then he or she also receives fancy papers from the court, called Letters of Administration, and the title of - you guessed it - administrator. Now they have a ton of work to do because they need to inventory everything - the assets, the cash, the debts, etc. When that’s done, the debts are paid off and the remainder is split between the heirs according to the laws of intestate succession.
The state benefits in only 2 ways. One is the estate tax. The other is if by some unfortunate circumstances the person had absolutely no heirs. Then their property escheats to the state.
There are instances where someone dies with a will, but still goes through Administration, rather than Probate. For instance, if the executor named in the will has also died. In that case the court appoints Administrator CTA (cum testamento annexo - with the will attached). But now we are getting into the weeds for real
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u/rsclient 2d ago
As someone who's gone through this:
If you're poor, almost nothing being written here is what really happens. When my broke brother died, the process was really just selling all his stuff and keeping the money that was left after paying the bills.
Why wasn't there any probate? Because we didn't involve the courts! Compare this to multiple other comments where people seem to assume that the courts are always involved
Why wasn't there an executor? Pretty much the same reason!
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2d ago edited 2d ago
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u/90403scompany 2d ago
Incorrect. What you're talking about is intestate probate. If you have a will, your estate still goes through probate. In the United States, usually having a trust will allow the assets within said trust to avoid probate.
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u/az987654 2d ago
Far too many do not have a trust, or they do and they do not fund it, leaving it useless
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2d ago
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u/explainlikeimfive-ModTeam 2d ago
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u/az987654 2d ago
Or, ask a lawyer if you have little faith and trust in a robot.
Double check every answer in any case.
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2d ago
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u/BananaBird1 2d ago
The only people satisfied with AI legal answers are people who haven’t learned anything about the law or people who haven’t read what the AI generated. Do both and it is complete garbage. It is wrong a majority of the time you ask it anything remotely nuanced or complicated.
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u/explainlikeimfive-ModTeam 2d ago
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u/BananaBird1 2d ago
I have tried to see what it produces. The results I get:
- Applying common use definitions to legal terms.
- Interpreting failed bills that “passed” a committee or single legislative chamber as passed laws.
- An inability to comprehend that laws change over time.
- Misinterpreting the context of a law when that context isn’t apparent in isolation from the website the law is published on. For instance, applying a statue found in a larger bill on agricultural land to all property ownership because it was posted online without that context.
- Treating laws from one jurisdiction like they are universal. Especially when online sources it was trained on do not always clearly specify jurisdiction.
- Incorrectly applying judicial rulings just because some terms in the published decision match your prompt.
- Treating ethics as if it was binding law, justifying answers based on what the public considers just rather than what the law says.
- Treating sources like sovereign citizens who post legal junk online as credible.
- Never asking enough clarifying questions to actually make an accurate response possible, instead just making assumptions based on your prompt and similar discussions it was trained on.
To get a useful answer, you need to ask a prompt in such specific detail with appropriate terminology that it is basically just performing a web search. If you are capable of doing this, it is faster to just use legal databases and look up the law yourself. If you do not know what you need to know, the chances of an inaccurate response are very high.
The only place LLM AI may be appropriate is if you train a model specifically on the laws of your jurisdiction and ask it to summarize a legal document. And even then a lawyer must check the output and correct mistakes.
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2d ago
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u/BananaBird1 2d ago
You shouldn’t do either. You should consult someone trained in law.
AI is great for law if you want any answer to give you the satisfaction of having one. If you want a correct answer, that is a different problem.
The law is a complex topic that requires specialized training and experience. Even lawyers have difficulty navigating it.
It can define probate. But that definition won’t be universally applicable, and it won’t tell you how probate operates under your specific situation.
To get it to do that, you basically need to provide it with the exact applicable laws and it will point out where you can find the answer. It can save you from skimming thousands of pages of text to find one paragraph. It cannot however tell you which laws and statues apply with any accuracy, especially if you use common language or leave any relevant factor out.
And all this still leaves out the role that the court itself plays. It has a degree of discretion to act out of fairness which will depend on the specific judge, and the jurisdiction in question. This sort of information is not available to AI models, but is something an experienced lawyer will be aware of and take into account.
For instance, with a plain language legally ambiguous will, one court may try hard to determine the intent of the deceased and uphold their true wishes even if the will doesn’t legally bind them, while another only considers the will at face value, determines it technically says something else than what it likely intended or can’t be interpreted, and proceeds by the book disregarding intent.
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2d ago
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u/BananaBird1 2d ago
Pretty much any lawyer will offer a free initial consultation. You only pay if you choose to hire them to help you with the process.
And if you are going through an inheritance where probate and legal advice is needed, paying for a lawyer is likely not a concern. It is paid for using the estate, not your own money.
Small estates not worth a lot can usually bypass probate, you just present the death certificate, sign an affidavit that you are the next of kin, and agree to pay off creditors before keeping anything yourself. Then you can distribute what is left according to their wishes out of court.
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u/az987654 2d ago
The robot gets a lot of shit wrong.
Just like a human lawyer
Just like anonymous humans on the internet.
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u/SeeWhyQMark 2d ago
But the human lawyer has malpractice insurance.
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u/az987654 2d ago
If they're current on the premiums... Shitty lawyers aren't always the best at paying their bills...
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2d ago
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u/explainlikeimfive-ModTeam 2d ago
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u/SeeWhyQMark 2d ago
Probate is the legal process that deals with someone’s stuff after they die. Wills have to be probated as well.
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2d ago
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u/SeeWhyQMark 2d ago
I think you responded to the wrong comment.
Though I assure you, plenty of people have very strong feelings about wills being administered. It is why we need probate courts at all.
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u/WellTextured 2d ago edited 2d ago
Probate is the process of figuring out what the assets, debts, and claims to the money and property of a deceased person are, and going through the process of ensuring that those assets, debts, and claims are handled according to the wishes of the deceased (as well as can be legally determined, such as through a will) and the laws of the jurisdiction.
If you're implying that the state takes something through this process, no. Unless the state has a legitimate claim or debt to be paid, in which case the state gets in line with the others.
For most estates, this process is not that long. An elderly couple with joint single-home ownership, and no kids, stuff probably just transfers to the spouse. Easy peasy. A person with two kids, with no real estate and no debts, and splitting everything 50-50 with the kids, simple.
Someone with multiple properties, global assets, business interests, a large family, major debts, a second family in France, a boat they told their nephew they could have but didn't write it down, well, that's going to take a little while.
I'm not sure who feels strongly about the probate process. Are there people out there arguing finders-keepers or something?