To probate a will means a court accepts it as the person's valid last will. Until that happens, the will can't transfer anything. Texas law says a will "is not effective to prove title to, or the right to possession of, any property" until it's admitted to probate (Tex. Est. Code § 256.001). Ohio says no will is "effectual to transfer real or personal property" unless it's admitted to probate or record (Ohio Rev. Code § 2107.61).
Once the court admits the will, it usually appoints the executor the will names and issues letters testamentary. That's the court document proving the executor can act for the estate, and it's what banks and agencies will ask to see.
How probating a will works
There are five stages, and the court is involved in the first four.
- The original will goes to the court. In Texas, whoever has the will must deliver it to the clerk of the court with jurisdiction once they learn of the death (Tex. Est. Code § 252.201).
- Someone applies to admit it. Usually that's the named executor, filing an application or petition in the county where the person lived. If you're not sure which office that is, see which court handles probate.
- The court checks that the will is valid. The judge looks at whether it was signed and witnessed the way the state requires. A self-proved will makes this step easier (more below).
- The court appoints the executor. In Texas, letters testamentary are to be granted before the 21st day after the will is probated, to an executor who isn't disqualified and is willing to serve (Tex. Est. Code § 306.001).
- The estate is administered. The executor gathers the assets, notifies creditors, pays debts and hands out what's left as the will directs. For a sense of the timing, see how long probate takes.
Self-proved wills
A self-proved will is one with a sworn statement attached, called a self-proving affidavit, that the person who made the will and the witnesses signed and swore to (Tex. Est. Code § 251.101). In Texas, a self-proved will can be admitted without testimony from the witnesses (Tex. Est. Code § 251.102). That helps a lot when the witnesses have died or moved away. In every other respect it's treated like any other will.
Is there a deadline to probate a will?
Yes, in many states, and missing it can cost the heirs. Two examples:
- Texas: a will generally can't be admitted to probate after the fourth anniversary of the death, unless the applicant shows they weren't in default for failing to present it sooner. Letters testamentary can't issue at all if the application was filed after that anniversary (Tex. Est. Code § 256.003).
- Ohio: a beneficiary who knows about the will for one year after the death, has control of it, and without reasonable cause withholds it or doesn't offer it for probate loses what the will leaves them. The property passes as if that beneficiary had died first (Ohio Rev. Code § 2107.10(A)).
Shorter routes than full probate
Not every will leads to a full court-supervised administration. Texas lets a court admit a will as a "muniment of title" when the estate owes no unpaid debts except debts secured by real estate, or when the court finds no need for administration (Tex. Est. Code § 257.001). The will is still probated, but the estate skips the full process.
Small estates may qualify for an affidavit instead; see small estate affidavit limits. And anything with a named beneficiary, or held in a trust, doesn't go through probate at all. Probate and non-probate assets explains how to tell the difference.
When there's no will
The estate still goes through probate. The person died intestate, which just means without a valid will, so the court appoints an administrator, issues letters of administration, and state law decides who inherits. In Ohio, for example, the probate court has exclusive jurisdiction to grant both letters testamentary and letters of administration (Ohio Rev. Code § 2101.24). The two kinds of letters are compared in letters testamentary vs letters of administration.
Getting the first filing together
The application to probate a will needs the original will, death certificates, and the names and addresses of the heirs. EverSettled helps you pull those together so you're attorney-ready sooner, then walks the executor through the rest of the paperwork that follows a death, which gets the family to the inheritance faster.
Frequently asked questions
What does it mean when a will is probated?
A court has accepted the will as valid. From then on it can be used to transfer the property it covers, and the court can appoint the executor it names.
How long after death must a will be probated?
It depends on the state. In Texas the general limit is four years after the death (Tex. Est. Code § 256.003). In Ohio, a beneficiary who withholds a will for a year without reasonable cause can lose their share (Ohio Rev. Code § 2107.10).
Does a will avoid probate?
No. A will is the document probate is about. Property only stays out of probate if it passes by beneficiary designation, joint ownership with survivorship rights, a transfer on death deed or a trust.