What Is Probate? How the Probate Process Works

What probate does

After a death, no one automatically has the right to sign for the person's bank account or sell their house. Probate solves that. The probate court, a division of the state court in the county where the person lived:

• Decides whether the will is valid, or, with no will, who the heirs are under state law.
• Appoints a personal representative (an executor if named in a will, an administrator if not) and issues letters, the document banks and title companies ask for.
• Sets a deadline for creditors, so the heirs can receive their shares without old debts surfacing years later.
• Transfers legal title to the heirs and closes the case, so the property can be sold or retitled.

What goes through probate, and what doesn't

A beneficiary designation beats the will: if the will leaves "everything" to one child but the IRA names another, the IRA goes to the one it names. If a named beneficiary died first and there is no backup, the asset usually falls back into the probate estate. Assets outside probate can still count for estate or inheritance tax.

The probate process, step by step

1. File the will and a petition with the probate court in the county where the person lived, with a certified death certificate. Heirs and beneficiaries get notice.
2. Get appointed. The court admits the will and issues letters testamentary, or letters of administration with no will. A bond may be required unless the will waives it.
3. Get an EIN and open an estate account. Every dollar of the estate runs through it. See estate EIN and bank account, and file Form 56 with the IRS.
4. Notify creditors. Publish the notice to creditors and write to known creditors; the claim period starts. Some states count from the death instead (Delaware, Maryland, Massachusetts, New Jersey, Ohio).
5. Inventory and value the estate at the date of death, and file the inventory where the court requires it.
6. Pay valid debts and expenses, and file the tax returns: the final Form 1040, the estate's Form 1041 if it has $600 or more of income, and any estate or inheritance tax return.
7. Account, distribute and close. After the claim period, give the court and heirs a final account, distribute the property, get receipts and ask to be discharged.

California's courts sum it up as three parts: opening the case, administering the estate and closing it. The executor checklist puts every step in order, from the first days to the final year.

Probate with a will and without one

With a will, the court usually appoints the executor it names, and the property goes to the people the will names. Without a will (dying "intestate"), probate still happens: the court appoints an administrator, usually the spouse or a close relative in the order state law sets, and the property goes to the heirs that state law lists, typically the spouse and children first. Without a will the court may also require a bond and proof of who every heir is, which adds time.

When probate isn't required

Every state lets families skip full probate for small estates, usually with a sworn affidavit or a short court procedure. The limits differ widely. A few examples:

• California: a small estate affidavit for up to $208,850 of probate property, 40 days after the death.
• Florida: summary administration when the estate subject to administration is $150,000 or less, for deaths since July 1, 2026.
• Texas: a small estate affidavit when there is no will and the estate, not counting the homestead and exempt property, is $75,000 or less.
• Virginia: a small asset affidavit when the personal probate estate is $75,000 or less, 60 days after the death.

Probate also isn't needed when everything passed outside it. For the limit, waiting period and form in your state, see the small estate affidavit by state table.

Formal, informal and independent probate

States that follow the Uniform Probate Code offer informal probate: a court official, often called the registrar, admits the will and appoints the executor without a hearing, and the executor settles the estate with little court involvement. Formal probate runs through hearings and court orders, and is used when someone objects or the court must decide a question. Texas has its own version, independent administration, where the executor acts without court approval for most steps. Less supervision means fewer hearings and usually a faster, cheaper case.

How long probate takes and what it costs

The legal minimum is the creditor claim period, from 60 days after the published notice to a year, depending on the state. Most uncontested cases finish in 6 to 18 months; our probate timeline calculator estimates yours, with the deadline for all 50 states and DC.

Costs are mostly the executor's and the attorney's fees. 23 states set the executor's fee by a schedule, and 5 set the attorney's fee as a percentage. The probate cost calculator works out both, and executor fees by state has every state's rule.

Probate vs a living trust

Property a person moved into a revocable living trust during life isn't in their probate estate. When they die, the successor trustee distributes it under the trust's terms without a court case, which is usually faster and keeps the details private. A trust only avoids probate for what was actually put into it; anything left in the person's own name can still need probate, which is why trusts are usually paired with a short "pour-over" will. A trust doesn't avoid estate or inheritance tax.

Related probate guides

• How long does probate take? Timeline by state
• Probate cost calculator: fees by state
• Probate court forms by state
• How to become an executor, step by step
• Letters testamentary: how executors get them
• How long an executor has to settle an estate
• Executor vs trustee
• Small estate affidavit by state
• Executor fees by state
• Executor checklist: what to do when someone dies
• Final tax returns for a deceased person