Probate is the court-supervised process for settling what a person leaves behind: a judge oversees the appointment of a representative, the identification and valuation of assets, the payment of debts and taxes, and the distribution of whatever remains to the heirs. So how does probate work in practice? Most estates move through the same sequence of steps, and the whole thing usually takes anywhere from six months to two years depending on the size and complexity of what the deceased owned.
Not every estate needs a full court proceeding, and not every asset even enters one. The first real question is whether probate is necessary at all.
When Probate Isn’t Needed
A significant share of what people own never passes through probate court. If an asset has a built-in mechanism for transferring ownership at death, it goes directly to the surviving owner or named beneficiary with no court involvement.
The common categories that skip probate:
- Property held in joint tenancy with right of survivorship, including tenancy by the entirety for married couples, passes automatically to the surviving co-owner.
- Life insurance policies, 401(k)s, IRAs, payable-on-death bank accounts, and transfer-on-death brokerage accounts go to whoever is named as beneficiary.
- Assets held in a revocable living trust are managed and distributed by the successor trustee under the trust document, because the trust holds legal title.
Some paperwork is still required. A surviving joint tenant usually records an affidavit and a certified death certificate with the local property records office to update title on real estate. Beneficiaries of financial accounts contact each institution with a death certificate to claim the funds. Faster and cheaper than probate, but not automatic.
Every state also offers shortcuts for estates below a certain dollar threshold. A small estate affidavit lets an heir collect assets by signing a sworn statement instead of opening a court case; the heir presents the affidavit and a death certificate directly to whoever holds the property. Dollar limits vary widely, from as low as $10,000 in some states to $200,000 or more in others, and most states impose a waiting period after the death before the affidavit can be used. Simplified or summary probate is a streamlined court proceeding that applies when the estate falls below a set threshold and no one contests the distribution; if the estate qualifies, it can wrap up in weeks rather than months.
If someone’s major assets all have beneficiary designations, joint ownership, or sit inside a trust, formal probate may be unnecessary or limited to a handful of smaller items.
Opening the Case
When full probate is necessary, the person who plans to serve as the estate’s representative gathers a few documents before filing anything:
- The original signed will. A photocopy generally will not satisfy the court.
- A certified death certificate from the local vital records office. Most courts require at least one certified copy, and banks, insurers, and title companies will each want their own.
- A preliminary inventory of what the deceased owned: real estate addresses, approximate bank balances, vehicle information, investment accounts.
- Names and mailing addresses for everyone who stands to inherit or qualifies as a legal heir. The court uses this list to send required notices.
Petition forms come from the probate court clerk’s office, and in most counties they’re downloadable from the court’s website. The petitioner files the completed forms, the original will if there is one, and the death certificate with the probate court in the county where the deceased person lived. A filing fee is due at this point, and the amount varies significantly by jurisdiction.
Once the filing is accepted, the court assigns a case number and schedules an initial hearing. Before that hearing takes place, two types of notice must go out. A notice of the probate proceeding is published in a local newspaper for two to four consecutive weeks, depending on state requirements, to alert creditors and anyone else with a potential interest. The petitioner also mails direct written notice to every heir and known creditor.
The Appointment Hearing
At the hearing, a judge reviews whether the will is valid and whether the proposed representative is qualified to serve. If no one objects and everything is in order, the court issues official authorization documents. With a will, these are called Letters Testamentary; without a will, they are called Letters of Administration. These letters are what give the representative legal power to act for the estate. Banks, title companies, and government agencies will not cooperate without them.
This hearing is also the point where anyone who wants to challenge the will must speak up. Common grounds include lack of testamentary capacity, undue influence, fraud or forgery, and improper execution (typically a failure to sign or witness the will as state law requires). Contests are uncommon, but a serious one can stall the case for months. Courts generally lean toward honoring the most recently signed and dated will when multiple versions surface; if a challenge succeeds and the will is thrown out, the estate is distributed as if no will existed.
Surety Bonds
Many courts require the personal representative to post a surety bond before receiving their letters. The bond functions like an insurance policy that protects beneficiaries and creditors if the representative mishandles estate funds, and the premium is typically tied to the total value of estate assets.
A bond can often be waived in three situations: the will directs that no bond be required, all adult beneficiaries sign written waivers, or the judge decides the circumstances make a bond unnecessary, such as a small estate or a close and trusted family member serving. Even with a waiver request, the judge retains discretion to require a bond if the facts warrant it.
When There Is No Will
If someone dies without a will, the estate still goes through probate under what is called intestate succession. The process is largely the same, with two key differences: the court decides who serves as administrator, and state law dictates who inherits.
A family member, usually a surviving spouse or adult child, petitions the court for appointment. State laws set a priority order and the court generally follows it unless the proposed person is disqualified. Disqualifying factors vary but commonly include being a minor, having certain criminal convictions, or being found mentally incapable of managing financial affairs. If no suitable family member steps forward, the court can appoint a professional administrator.
Assets pass to relatives in a fixed order. A surviving spouse and children are at the front, followed by parents, siblings, and more distant relatives. Friends and charities receive nothing under intestate succession. If no living relatives can be found, the estate eventually goes to the state.
Inventorying the Assets
Once appointed, the representative’s first job is securing everything the deceased owned. That means changing locks on real property if needed, redirecting mail, notifying financial institutions, and moving liquid assets into a dedicated estate bank account. Mixing personal funds with estate funds is one of the fastest ways to create legal problems.
A formal inventory listing every asset and its fair market value as of the date of death is filed with the court, usually within 90 days of appointment. Publicly traded stocks and bank balances are straightforward. Real estate, jewelry, business interests, art, and collectibles typically need a professional appraisal. Some states use a court-appointed appraiser; others let the representative hire one independently.
The inventory is not just a formality. It establishes the baseline for tax filings, determines whether the estate owes federal estate tax, and shows beneficiaries what exists. Omitting assets, whether intentionally or through carelessness, can expose the representative to personal liability.
Paying Debts and Taxes
Before any beneficiary receives a dollar, the estate must settle its obligations. This is where many people are surprised to learn that inherited wealth shrinks, sometimes substantially, before it reaches them.
Creditor Claims
The published newspaper notice starts a clock running. Creditors have a limited window to file formal claims against the estate, and the exact deadline varies by state. Once that window closes, most unpaid creditors lose their right to collect. The representative reviews each claim, approves or disputes it, and pays approved claims from estate funds.
When the estate cannot pay every creditor in full, a statutory priority order controls who gets paid first. The exact ranking differs slightly by state, but the pattern is consistent: administration costs (court fees, attorney fees, and the representative’s own expenses) come first, followed by reasonable funeral and burial expenses, then federal tax obligations, then medical expenses of the last illness, then state taxes and other state-preferred debts, and finally general unsecured debts like credit cards. Paying a lower-priority creditor and running out of money before satisfying a higher-priority one can leave the representative personally responsible for the shortfall.
Medicaid Estate Recovery
Federal law requires every state Medicaid program to seek repayment from the estates of recipients who were 55 or older and received nursing facility care, home and community-based services, or related hospital and prescription drug services. This claim can be substantial. States may not pursue recovery, however, when the deceased is survived by a spouse, a child under 21, or a child of any age who is blind or disabled, and states must allow hardship waivers when recovery would cause undue financial harm to surviving family members.1Medicaid.gov. Estate Recovery
Tax Returns
The representative is responsible for filing several potential returns, and missing any of them can trigger penalties that eat into what beneficiaries receive.
The deceased person’s final individual income tax return (Form 1040) covers January 1 through the date of death and is due on the normal April filing deadline for the following year. For a 2025 death, that return is due by April 2026 unless an extension is filed.2Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
If the estate itself earns income after the date of death (interest, dividends, rent, or gains from selling assets), the representative files an estate income tax return (Form 1041) for any year in which gross income reaches $600 or more.3Internal Revenue Service. Instructions for Form 1041 and Schedules A, B, G, J, and K-1
A federal estate tax return (Form 706) is required only for estates that exceed the basic exclusion amount, which for 2026 is $15,000,000 per individual. This threshold was increased by the One, Big, Beautiful Bill Act signed into law on July 4, 2025. A married couple can effectively shield up to $30,000,000 through portability of the unused exclusion. Estates above the line face a top marginal rate of 40%.4Internal Revenue Service. What’s New – Estate and Gift Tax
What It Costs
Serving as a personal representative is real work, and the law allows compensation for it. Roughly half of states set executor fees through a statutory formula, usually a percentage of the estate’s total value that decreases in tiers as the estate gets larger. The remaining states leave it to the court to determine reasonable compensation based on time spent, complexity, and local standards. If the will specifies a fee, that amount usually controls.
Attorney fees follow a similar pattern. A handful of states set statutory schedules for probate attorney compensation, while most allow hourly billing or negotiated flat fees. Attorney fees and representative compensation are paid from estate assets as administration expenses before beneficiaries receive their shares. For a moderately complex estate, total professional fees can run several thousand dollars.
Closing the Estate
After every creditor is paid, every tax return is filed, and the claims window has closed, the representative prepares a final accounting. This document records every dollar that came into the estate and every dollar that went out: asset values at death, income earned during administration, debts paid, fees charged, and the balance remaining for distribution. The accounting is filed with the court, and copies go to all beneficiaries.
Beneficiaries have the right to review the accounting and raise objections if they believe funds were mishandled. If no objections are filed, or after objections are resolved, the court issues a distribution order authorizing the representative to transfer remaining assets to the people named in the will or, in an intestate estate, to the heirs identified under state law.
The actual transfers involve some final legwork. Real estate requires recording a new deed. Vehicles need title transfers through the motor vehicle department. Financial accounts are retitled or liquidated and distributed. Once every asset has moved and the representative has collected signed receipts from each beneficiary, the representative files a petition for discharge. The court reviews it and, if satisfied, issues a final decree that officially closes the case and releases the representative from further legal responsibility.
What Happens If Nobody Files
Ignoring probate does not make the problem go away. Most states require anyone in possession of an original will to file it with the court within a set period after the death, commonly 30 days to three months. Failing to file is not a criminal offense in most places, but a person who is harmed by the delay can sue for damages. Deliberately concealing a will for financial gain can cross into criminal territory.
Without a probate case, the assets effectively stay frozen. No one has legal authority to access bank accounts, sell real estate, or transfer titles. Property sits in the deceased person’s name indefinitely, beneficiaries cannot claim their inheritance, and creditors have no orderly process for collecting what they are owed. For anything beyond the smallest estates with simple beneficiary designations, getting probate started is not optional in any practical sense.