When someone dies with a will, the document goes to the local probate court, which confirms it is valid and appoints the executor named inside it. That executor then gathers the deceased person’s assets, pays debts and taxes from the estate, and distributes whatever is left to the beneficiaries the will names. The process usually takes nine months to two years. Having a will does not let the family skip probate; it gives the court a roadmap for who gets what.
Filing the Will With the Probate Court
The first practical step is finding the original signed will. People keep them in fireproof safes at home, at their attorney’s office, or sometimes in a bank safe deposit box. The person named as executor usually retrieves it, though any family member who finds it can bring it to court.
The original gets filed with the probate court in the county where the deceased person lived, together with a certified copy of the death certificate. Filing turns the will from a private document into a public record and officially opens probate.
Most states set a deadline for filing after a death. Some require filing within 30 days; others give several months. Missing the window can cost the named executor the right to serve, so getting the will to the court quickly matters.
Who the Executor Is and What They Do
The executor is the person (or sometimes an institution like a bank) named in the will to carry out its instructions. Before they have any legal authority, the court has to formally appoint them by issuing a document commonly called Letters Testamentary. That paperwork is their proof of authority. Banks, title companies, and government agencies will not cooperate without it.1Legal Information Institute. Letters Testamentary
Once appointed, the executor takes on a fiduciary role, meaning they are legally required to put the estate’s interests ahead of their own. Their core duties are to:
- Identify and value everything the deceased owned, from real estate and bank accounts to vehicles and personal property.
- Protect the estate by maintaining property, keeping insurance current, and managing investments prudently.
- Notify beneficiaries, potential heirs, and known creditors.
- Pay legitimate debts, administrative costs, and taxes out of estate funds.
- Distribute the remaining assets to beneficiaries as the will directs, once the court approves.
- Keep detailed records of every dollar in and out so they can give a full accounting to the court and beneficiaries.
Executors are entitled to be paid for the work. Some states fix compensation by statute, often on a sliding scale in the 2% to 5% range of estate value. Others simply require that the fee be reasonable, judged by the complexity of the work.
The fiduciary duty is not a formality. If the executor mismanages the estate by missing tax deadlines, making reckless investments, selling property to themselves at a discount, or mixing estate money with personal accounts, a court can order them to personally repay any losses. Serious misconduct can bring criminal charges, and a court can remove the executor and appoint a replacement.2Justia. Executor’s Breach of Fiduciary Duty Under the Law An executor who acts in good faith is not liable just because an investment loses value. The standard is prudent management, not perfection.
How Probate Validates the Will
A common misconception is that having a will means avoiding probate. It does not. Probate is the court-supervised process that validates the will and oversees the executor. The court confirms the will meets legal requirements, gives creditors a formal window to collect, and provides a forum for anyone who wants to challenge the document.
To hold up, a will generally has to be in writing, signed by the person who made it, and witnessed by at least two people present at the signing. If the will includes a self-proving affidavit, a notarized statement from the witnesses confirming the signing, the court can accept the will without calling those witnesses to testify.3Legal Information Institute. Self-Proving Will Most wills prepared by an attorney include one, which speeds validation considerably.
How Long Probate Takes and What It Costs
A straightforward estate with no disputes and modest assets can clear probate in roughly six to nine months. Most fall in the nine-to-eighteen-month range. Estates that have to file a federal estate tax return often run past two years because the IRS needs time to review the filing. A will contest or creditor dispute pushes the timeline further.
Probate is not free. Court filing fees typically run a few hundred dollars. Attorney fees are the bigger expense: some states allow a statutory percentage of the estate, while others bill hourly or by flat fee. Between court costs, executor compensation, attorney fees, and administrative expenses like appraisals and accounting, total probate costs commonly consume 3% to 7% of the estate’s value.
What the Will Does Not Control
Something that catches many families off guard: a will does not govern everything the deceased owned. Several common assets pass directly to named beneficiaries outside of probate, regardless of what the will says. Those beneficiary designations override the will.
- Life insurance proceeds go directly to the policy’s named beneficiary.
- Retirement accounts such as 401(k)s, IRAs, and pensions pass to whoever is listed with the plan administrator.
- Real estate or bank accounts held as joint tenants with right of survivorship transfer automatically to the surviving co-owner.4Justia. Joint Ownership With Right of Survivorship and Legally Transferring Property
- Payable-on-death and transfer-on-death accounts skip probate entirely.
- Anything already placed in a living trust passes under the trust’s terms, not the will.
So the will really only controls assets titled solely in the deceased person’s name with no beneficiary designation. For many families, the non-probate assets, the jointly owned house, the retirement accounts, the life insurance, are the bulk of the estate’s value. If the will says “I leave everything to my sister” but the 401(k) still names an ex-spouse, the ex-spouse gets the 401(k).
Paying Debts and Taxes Before Anyone Inherits
Before a beneficiary sees a dime, the executor has to settle the estate’s debts. That starts with publishing a notice to creditors, which most states require, and sending direct written notice to known creditors. Once notified, creditors generally have three to six months, depending on the state, to file a formal claim.5Justia. Creditor Claims Against Estates and the Legal Process
The executor reviews each claim and can reject ones that look invalid. If the estate cannot cover everything, debts are paid in a priority order set by state law. Administrative expenses and funeral costs usually come first, followed by taxes, medical bills from the final illness, and then other creditors. Beneficiaries are last. They inherit only what remains.
The executor also handles taxes. The deceased person’s final individual income tax return covers income earned from January 1 through the date of death. It is prepared like any other return, and the executor signs on the deceased’s behalf.6Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
A federal estate tax return (Form 706) is only required for estates above the filing threshold. For 2026, the federal estate tax exemption is $15,000,000 per individual.7Internal Revenue Service. What’s New — Estate and Gift Tax Estates below that amount owe no federal estate tax. Above it, the rate is 40% on the portion exceeding the exemption.8Office of the Law Revision Counsel. 26 US Code 2010 – Unified Credit Against Estate Tax The return is due nine months after the date of death, though the executor can request an automatic six-month extension.9Internal Revenue Service. Frequently Asked Questions on Estate Taxes Some states have their own estate or inheritance taxes with lower thresholds, so the executor needs to check both the state of residence and any state where the deceased owned real estate.
Distributing What Is Left
Once debts, taxes, and expenses are paid, the executor distributes the remaining assets to the beneficiaries named in the will. Before doing so, the executor typically prepares a final accounting that details every asset collected, every expense paid, any income the estate earned during administration, and the proposed distribution. The accounting goes to the court and the beneficiaries for review.
After the accounting is approved, or the waiting period passes without objection, the executor transfers property as the will directs. That might mean signing over a house deed, retitling a vehicle, liquidating investment accounts, or writing checks from the estate account. Once everything is distributed and the court signs off, the estate is formally closed.
Small Estate Shortcuts
Not every estate needs full probate. Every state offers some form of simplified procedure for smaller estates, usually called a small estate affidavit or summary administration. These paths are faster, cheaper, and involve little or no court supervision.
The dollar threshold varies widely, from as low as $15,000 to over $200,000 for personal property, with some states setting higher limits for a surviving spouse.10Justia. Small Estates Laws and Procedures – 50-State Survey With a small estate affidavit, an heir or beneficiary signs a sworn statement confirming the estate’s value is below the threshold, debts have been paid, and they are entitled to the property. Once notarized, the affidavit can be presented directly to banks or title offices without a court hearing. If the estate’s value is anywhere near the cutoff, check your state’s specific rules before committing to full probate.
If Someone Challenges the Will
A will contest is a court proceeding where someone argues the document should not be honored. Only a person with a direct financial stake, such as someone who would inherit under a prior will or under state intestacy law if this one were thrown out, has standing to file.11Legal Information Institute. Will Contest
Courts recognize a limited set of grounds:
- Lack of mental capacity, meaning the person who made the will did not understand what they owned, who their family was, or what signing meant.
- Undue influence, where someone pressured or manipulated the deceased into changing the will in their favor.
- Improper execution, where the will was not signed or witnessed according to state law.
- Fraud or forgery, where the deceased was tricked into signing or the document itself was altered or faked.
- Revocation, where a more recent valid will exists or the deceased took steps to cancel the earlier version.
If a challenge succeeds, the court can throw out the entire will or just the contested portions. Some wills include a no-contest clause, which says that any beneficiary who challenges the will and loses forfeits what the will left them. Enforcement varies by state. Some courts enforce these clauses strictly, while others will not penalize a beneficiary who had probable cause to bring the challenge.