This guide is general legal information, not legal advice, and does not create an attorney–client relationship. Rules change and vary by state — verify current requirements with official sources or a licensed attorney.
When someone dies, their bills do not pay themselves and their bank does not simply hand the money to relatives. Probate is the court-supervised process that bridges the gap: it confirms whether a will is valid, appoints someone with legal authority to act for the estate, sees that debts and taxes are paid, and orders the remaining property distributed to the people entitled to it.
Probate is governed by state law and run through state courts — called probate court, surrogate's court, or orphans' court depending on the state — so names, forms, deadlines, and dollar thresholds vary by jurisdiction. The sequence below is broadly consistent nationwide; where concrete numbers help, we use California's court self-help materials as a worked example and flag them as such.
Key takeaways
- Probate applies to assets titled solely in the decedent's name; property in trusts, joint tenancy, or with beneficiary designations usually bypasses it entirely.
- The executor or administrator gets authority only when the court issues letters — until then, no one can legally sell estate assets or close accounts.
- Core phases everywhere: open the case, notify heirs and creditors, inventory and value assets, pay valid debts and taxes, then distribute and close.
- A straightforward probate commonly runs many months to over a year; California's courts, for example, describe a typical range of 9 to 18 months.
- Every state offers shortcuts for small estates — affidavits or simplified petitions with dollar caps that differ dramatically by state.
First question: does this estate need probate at all?
Before anyone files anything, sort the decedent's assets into two piles. Non-probate assets transfer by operation of law or contract: property held in a living trust, joint accounts and real estate with survivorship rights, life insurance and retirement accounts with living named beneficiaries, and payable-on-death or transfer-on-death accounts and deeds. Probate assets are what is left — property titled in the decedent's name alone with no designated beneficiary.
If the probate pile is small, formal probate may be unnecessary. States set thresholds for simplified transfers; in California, for deaths on or after April 1, 2025, personal property up to $208,850 can pass by small-estate affidavit, and a primary residence worth up to $750,000 can transfer through a simplified petition — figures the state adjusts every three years. Other states use very different caps, and many offer separate spousal shortcuts. The difference between planning ahead and defaulting into probate is covered in our comparison of wills and living trusts.
The probate process, step by step
- Locate the will and file the petition. The original will (if any) and a petition to open probate are filed in the county where the decedent lived, with a filing fee (in California, typically $435, waivable for hardship). The petition asks the court to admit the will and appoint the nominated executor — or, with no will, an administrator chosen by statutory priority, usually the closest relative.
- Give notice and attend the hearing. Heirs and beneficiaries must be notified, and many states also require published notice in a local newspaper. At the hearing, the judge rules on the will's validity and on who will serve. Objections — to the will or the proposed representative — are raised here.
- Receive letters and take control of assets. The court issues letters testamentary (with a will) or letters of administration (without). Armed with letters, the personal representative opens an estate bank account, secures property, redirects mail, and notifies banks, insurers, and government agencies of the death.
- Inventory and value the estate. The representative files a formal inventory of probate assets with date-of-death values; some states, including California, require appraisal of non-cash assets by a court-appointed referee or appraiser.
- Notify creditors and resolve claims. Known creditors receive direct notice, and a statutory claim window runs — its length varies by state. The representative pays valid claims, contests doubtful ones, and files the decedent's final income tax return, plus any estate-level returns discussed in our guide to federal estate and gift tax basics.
- Account, distribute, and close. After debts and expenses, the representative files a final accounting (unless beneficiaries waive it), the court approves distribution, assets are transferred, receipts are filed, and the representative is discharged.
Watch the deadlines: Probate runs on statutory clocks — deadlines to file the will after death, to object to its admission, for creditors to submit claims, and for status reports or accountings (California, for example, expects a status report or accounting within a year of appointment). Missing them can mean personal liability for the representative, so calendar every date the day the letters issue.
What the executor actually signs up for
A personal representative is a fiduciary: the law requires acting in the estate's interest, not their own, with the care of a prudent person handling someone else's money. The Consumer Financial Protection Bureau's fiduciary guides are a useful plain-language orientation to that standard. In practice the job includes:
- Keep estate money strictly separate — never commingle it with personal funds.
- Secure and insure the home, vehicles, and valuables promptly.
- Keep receipts and records for every transaction; the final accounting depends on them.
- Treat all beneficiaries impartially and communicate regularly to prevent disputes.
- Get court approval where required before selling real estate or running a business.
- Pay debts in the statutory order of priority — paying the wrong creditor first can create personal liability if the estate runs short.
- Hire help when warranted (attorney, accountant, appraiser) — reasonable professional fees are ordinarily paid by the estate.
Executors are generally entitled to compensation, set by statute in some states (California uses a percentage-of-estate schedule) and by "reasonableness" in others. Family-member executors sometimes waive fees, partly because fees are taxable income while inheritances generally are not.
How long it takes and what it costs
For an uncontested estate, many months is normal: notice periods, creditor windows, appraisals, and court calendars each add weeks. California's self-help materials put a typical formal probate at 9 to 18 months, longer for complicated estates. Contested wills, hard-to-sell assets, ongoing businesses, and estate tax returns can stretch administration past two years anywhere.
Costs typically include court filing fees, publication and appraisal charges, bond premiums (unless the will waives bond), and professional fees. States differ sharply on attorney compensation: some allow statutory percentage fees, others hourly or court-approved reasonable fees. Because several costs scale with the gross estate, modest estates can lose a meaningful share to administration — one reason probate-avoidance planning and the incapacity documents described in our guide to powers of attorney and health care directives are usually cheaper before death than court processes after it.
When probate turns into a fight
Most probates are administrative, but disputes follow familiar patterns: will contests alleging lack of capacity, undue influence, fraud, or defective execution; fights over who should serve as representative; creditor claim disputes; and beneficiary challenges to accountings or asset sales. Contests face strict, short deadlines — often measured from the admission hearing or from notice — and "no-contest" clauses in some states raise the stakes for challengers. Early mediation resolves many estate disputes at a fraction of trial cost, and courts can order a representative removed or surcharged for fiduciary breaches. If a dispute is likely, beneficiaries and representatives alike should get counsel before positions harden; more resources on the surrounding law are collected on our estate and probate law hub.
Frequently asked questions
Is probate required if there is a valid will?
Usually yes — a common misconception runs the other way. A will does not avoid probate; it instructs the probate court. Whether probate is needed depends on how assets are titled and their value, not on the will's existence. Estates composed of trust assets, joint property, and beneficiary-designation accounts may skip probate entirely, will or no will.
Who becomes executor if the will doesn't name one, or there is no will?
The court appoints an administrator using a priority list set by state statute — typically the surviving spouse or domestic partner first, then adult children and other close relatives. The appointee's job is the same as a named executor's, though administrators without a will distribute property under the state's intestacy statute rather than the decedent's stated wishes.
Can the family take money from the accounts before probate is opened?
No. Until the court issues letters, no one has authority over solely titled assets, and banks will generally freeze accounts once notified of the death. Using a decedent's funds informally — even for seemingly legitimate bills — can create personal liability and complicate the eventual accounting. Non-probate assets like joint accounts and insurance proceeds, by contrast, are available to their survivors and beneficiaries right away.
Do executors get paid, and do they need a lawyer?
Executors are entitled to compensation under state law — a statutory percentage in some states, a court-approved reasonable fee in others — though family members often waive it. A lawyer is not always legally required, but estates with real property, significant debts, business interests, or family friction usually justify one, and the attorney's reasonable fees are ordinarily paid from the estate, not the executor's pocket.
What happens if the estate owes more than it owns?
The estate is insolvent, and state law ranks creditors: administration expenses, funeral costs, taxes, and secured debts generally come before ordinary unsecured creditors, who may receive partial payment or nothing. Beneficiaries inherit only what remains, and heirs are not personally responsible for a decedent's debts they did not co-sign — a point worth remembering when debt collectors call.
Getting oriented in the first month
If you have just lost someone and think you may be the executor: order multiple certified death certificates, locate the original will, secure the home and mail, and make no distributions or account withdrawals yet. Then sort assets into probate and non-probate piles and check your state's small-estate thresholds on its court self-help site — you may not need formal probate at all. If you do, file the petition in the county where the decedent lived, calendar every statutory deadline the day you are appointed, and treat recordkeeping as the core of the job. For estates with real property, conflict, or unclear titles, an hour with a probate attorney early usually saves months later.
