Educational guide — not legal advice. Probate laws vary by state and change over time. Confirm specifics with a licensed attorney in your state.
What probate actually means
When someone dies, they usually leave behind two kinds of things: stuff they owned (a house, a bank account, a car, the contents of their closet) and stuff they owed (a mortgage, a credit card balance, a final medical bill).
Probate is the formal, court-supervised process for sorting all of that out. The court:
- confirms the will is valid (or, if there’s no will, applies the state’s intestacy rules);
- officially appoints someone — the executor (named in the will) or administrator (named by the court) — to handle the estate;
- makes sure debts and taxes get paid; and
- supervises the transfer of what’s left to the heirs and beneficiaries.
It’s not punishment, and it’s not unusual. It’s just the legal mechanism that lets a dead person’s property change hands.
Probate, step by step
Procedures vary by state, but the bones of the process are similar everywhere:
1. File the will (and a death certificate)
The original will and a certified death certificate are filed with the probate court (in some states it’s called the Surrogate’s Court, the Orphans’ Court, or the Register of Wills). This usually has to happen within a few weeks of death. Filing fees are set by each state and county; each state page gives that state’s figure with its source.
2. The court appoints a personal representative
If the will names someone — call them the executor — the court formally appoints them by issuing Letters Testamentary. If there’s no will, the court appoints an administrator, usually a close relative, and issues Letters of Administration. Either way, that document is the executor’s legal authority to act on the estate’s behalf — to talk to banks, sell property, sign contracts.
3. Notify heirs, beneficiaries, and creditors
The executor sends formal notice to everyone named in the will, to legal heirs (if no will), and to known creditors. In most states the executor also has to publish a notice in a local newspaper — that’s the legal trigger that starts the creditor claim period (more on that in a minute).
4. Inventory the estate
The executor compiles a list of everything the decedent owned that goes through probate — bank accounts, real estate, vehicles, investment accounts, personal property of significant value. This list, with date-of-death values, gets filed with the court. Some states (like California) appoint a state referee to appraise assets; others let the executor handle it with private appraisers as needed.
5. Pay debts and taxes
Creditors who file timely claims get paid out of estate assets, in the priority order the state specifies. Final income taxes, any state inheritance or estate taxes, and (for a gross estate above the basic exclusion amount, $15,000,000 under 26 U.S.C. §2010(c)(3)(A)) federal estate tax get filed and paid.
6. Distribute what’s left
Once debts and taxes are settled, the executor distributes the remaining assets — to the beneficiaries named in the will, or to the heirs identified under state intestacy law. The court signs off on a final accounting, and the estate is officially closed.
How long probate takes
For a routine, uncontested estate, probate typically takes:
| Situation | Typical timeline |
|---|---|
| Simple estate, no real estate, no disputes | Shortest; the creditor-claim period sets the floor |
| Routine probate | Longer than the creditor-claim period |
| Estate with real estate that has to be sold | Runs until the sale closes |
| Contested will, missing heirs, or tax issues | Runs until the contest, the search or the return is resolved |
The single biggest factor that sets the floor is the creditor claim period — the legal window during which creditors can file claims. Each state’s statute sets its own length, and those are documented per state with their citations in the hub linked below, together with what that statute provides about distribution before the window closes.
We have state-specific timelines at our Probate Timeline by State hub.
How much probate costs
There is no national figure: what probate costs is set state by state, and the per-state figures with their statutes are in the hub linked below. The costs fall into four buckets:
- Court filing fees — set by state and county, sometimes scaled to the size of the estate.
- Personal representative (executor) compensation — set by statute in some states (California, Ohio, New York, Florida, North Carolina, Georgia), set as “reasonable” in others (Texas, Pennsylvania, Illinois, Michigan).
- Attorney fees — set by statute in a few states (California, for example); negotiated in most.
- Other costs — bond premium (if required), appraisal fees, publication of notice, certified copies.
In California both compensations run on the same statutory schedule: Cal. Prob. Code §10800(a) sets the personal representative’s compensation for ordinary services at 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000 and 0.5% of the next $15,000,000, and §10810(a) sets the attorney’s compensation on the same schedule. On an estate accounted for at $500,000 that is $13,000 on each schedule — $26,000 for the two together — before court costs. Texas sets no statutory schedule and allows independent administration under Texas Estates Code Chapter 401.
For the state-by-state breakdown, see our Probate Cost by State hub.
What skips probate entirely
A surprising amount of property never goes through probate, because it passes by operation of law instead of by will. These are sometimes called “non-probate assets”:
- Life insurance with a named beneficiary
- Retirement accounts (401(k), IRA, 403(b)) with named beneficiaries
- Payable-on-death (POD) bank accounts
- Transfer-on-death (TOD) brokerage accounts and, in some states, TOD deeds for real estate
- Jointly held property with right of survivorship (most spousal homes, for example)
- Assets in a properly funded revocable living trust — these are owned by the trust, not by the decedent, so they pass to the named successor beneficiaries without court involvement
This is why a lot of families say “my parents had a will and we still avoided probate.” The will controls probate assets; everything else passes outside the will.
Do you need a lawyer for probate?
For most full-probate cases, yes. The court process has formal requirements — strict deadlines, specific filings, particular language — and a missed step can cost more (and take longer) than the legal fees would have. Probate attorneys typically charge either a flat fee, an hourly rate, or (in a few states) a statutory percentage of the estate.
You can often handle it yourself if:
- The estate qualifies for a small-estate procedure. Most states provide one, each with its own ceiling set by statute; those are documented per state.
- The decedent had a funded living trust that holds the major assets — then there’s nothing to probate.
- Everything passes via beneficiary designations and joint ownership — same result.
- The state provides an independent or unsupervised administration procedure, documented per state at How to Avoid Probate by State, and the estate is simple.
For everything else, a probate attorney is usually money well spent — even just for a one-hour consultation to figure out which procedure applies.
What the record shows
Probate is the court-supervised administration of a decedent’s estate: admission of the will, appointment of a personal representative, inventory, notice to creditors, payment of debts and taxes, distribution, and closing. The deadline at each step is set by each state’s statute and varies; the per-state inventory deadline, creditor-claim period and outer bar are documented at Executor Deadlines by State, and it is the creditor-claim period that commonly sets the floor on how long an estate stays open — documented state by state in Executor Deadlines by State.
Assets pass outside probate by operation of title and contract, not by anything the will says: beneficiary designations on retirement accounts and life insurance, payable-on-death and transfer-on-death account registrations, joint ownership with right of survivorship, transfer-on-death deeds in the states with a statute for them, and assets retitled into a funded trust.
Cost is documented per state in Probate Cost by State and duration in How Long Does Probate Take by State. A will remains the only instrument that nominates a guardian for minor children and directs any property not covered by one of the mechanisms above.
Educational information only. Probate law varies by state and changes; confirm current rules and procedures with a licensed attorney in your jurisdiction before relying on this page. Sources: state probate codes; Uniform Probate Code (a model act of the Uniform Law Commission, in force only as each state has enacted it — Cornell LII, Uniform Probate Code, Wex, last reviewed April 2025); the by-state guides linked above, each with its own statute cites and verification dates.