Probate after death is the court-supervised process that confirms a deceased person’s will, pays off their remaining debts, and legally transfers what’s left to the people entitled to inherit it. A judge oversees each stage, from appointing someone to run the estate through approving the final handout of property. Until probate is complete, legal title to anything held solely in the deceased person’s name — bank accounts, a house, a car — cannot change hands. The process also creates a permanent public record of who received what, which protects heirs if a dispute surfaces later.
Which Assets Actually Go Through Probate
Not everything a person owned at death needs the court’s involvement. Probate applies only to assets held solely in the deceased person’s name with no built-in way to pass automatically to someone else. Typical examples include an individually owned bank account with no “payable on death” designation, real estate held as tenants in common, a vehicle without a transfer-on-death title, and personal property like jewelry, furniture, and art.
Many assets skip court entirely because ownership transfers on its own:
- Life insurance proceeds go directly to the named beneficiary.
- Retirement accounts such as 401(k) plans and IRAs pass to the designated beneficiary.
- Property held in joint tenancy with right of survivorship transfers to the surviving co-owner.
- Assets placed in a living trust pass through the successor trustee, outside court.
- Bank and brokerage accounts with payable-on-death or transfer-on-death designations go straight to the named person.
One of the first jobs after a death is sorting assets into these two piles. Only the probate-side items need a court order to change ownership.
What Happens When There Is No Will
If someone dies without a valid will, the estate still goes through probate. The court simply follows a set of default rules called intestate succession instead of the deceased person’s written instructions. Every state has its own version, but the priority order is broadly similar: a surviving spouse and children come first, then parents, then siblings, then more distant relatives. If no living relative can be found, the property eventually goes to the state.
How much a surviving spouse receives depends on state law and whether the deceased person had children. In many states, if all the children are also the surviving spouse’s children, the spouse inherits the entire estate. When the deceased person had children from a prior relationship, the spouse usually receives a fixed dollar amount plus a percentage of the rest, with the remainder going to the children. These default rules rarely match what people would have chosen on their own, so intestate outcomes often surprise families.
With no will to name an executor, the court appoints an administrator. This person has the same duties — collecting assets, paying debts, distributing property — but follows the state’s intestacy formula rather than written instructions.
How the Probate Process Works Step by Step
Probate begins when someone, usually the person named as executor in the will, files a petition with the local court. The petition asks the judge to accept the will as valid and to appoint a personal representative to run the estate. Along with the petition, the applicant files the original will, a certified copy of the death certificate, an inventory of what the deceased person owned, and a list of heirs and named beneficiaries with their current addresses. Petition forms are available from the court clerk’s office, and many courts now accept online filing.
Filing fees generally run from about $200 to $500, depending on the estate’s value and local rules. Once the fee is paid, the court schedules a hearing. The judge reviews the will, considers any objections, and formally appoints the personal representative.
If appointed, the representative receives official court documents granting authority over the estate. When there’s a will, these are called Letters Testamentary; without a will, they’re called Letters of Administration. Either document lets the representative access accounts, manage investments, sell property, and otherwise handle the estate’s financial affairs.
Notifying Creditors
The representative is legally required to tell creditors that the estate is in probate. That typically means publishing a formal notice in a local newspaper and sending direct notice to any known creditors. Creditors then have a limited window to file claims — as little as two months in some states, up to a year in others, with most states falling between three and six months. The representative reviews each claim and pays legitimate debts from estate funds.
Managing the Estate
Throughout probate, the representative has an ongoing duty to manage estate assets responsibly. That means keeping property insured, filing tax returns, maintaining real estate, and avoiding any transaction that benefits the representative personally at the estate’s expense.
Accounting and Final Distribution
Once debts and expenses are paid, the representative prepares a formal accounting of every financial transaction since the date of death: income received, debts paid, fees incurred, and assets sold. This accounting goes to the court along with a proposed plan for distributing what remains. Only after the judge approves the accounting can the representative legally transfer the remaining assets to the heirs and close the estate.
How Long Probate Takes
A straightforward estate with a clear will and cooperative heirs can sometimes wrap up in six to nine months. Larger or more complicated estates often run well past a year, particularly when they involve business interests, real estate in more than one state, disputes among heirs, or a contested will. Common sources of delay include trouble locating heirs, creditor disputes, lawsuits against the estate, and the need to sell illiquid property such as a house before anything can be distributed.
What Probate Costs
Probate costs come from several sources, and the total depends heavily on the estate’s size and complexity.
- Court filing fees typically range from $200 to $500, though some jurisdictions charge more for larger estates.
- Probate lawyers usually charge either an hourly rate or a percentage of the estate’s value. Percentage fees generally fall between 2% and 5% of the gross estate, though some states set statutory fee schedules.
- About a third of states set executor compensation by statute, usually on a sliding scale that drops as estate value rises. The rest use a “reasonable compensation” standard set by the court. Typical compensation runs 2% to 5% of the estate. Executor fees count as taxable income.
- Many courts require the personal representative to post a surety bond that protects beneficiaries and creditors against mishandling. A will can waive this requirement, and some states allow heirs to consent to a waiver. When required, the annual premium is usually a small percentage of estate value.
- Appraisal fees, publication fees for creditor notices, and accounting fees round out the picture.
All these costs come out of estate funds, not the representative’s own pocket. But they reduce what beneficiaries ultimately receive, which is why smaller estates especially benefit from the shortcuts described below.
Small Estate Shortcuts
Every state offers some simplified procedure for smaller estates. The most common is the small estate affidavit, a sworn statement that lets heirs collect property without opening a formal probate case at all. Dollar thresholds vary widely — as low as $5,000 in some states, as high as $200,000 in others, with many states somewhere around $50,000 to $75,000.
Some states also offer summary administration, a middle-ground court process for estates above the affidavit limit but below a higher cap. Summary administration still involves the court but skips many of the time-consuming steps of a full case, including the long creditor notice period.
Eligibility depends on the state, the total value of probate assets, and sometimes the types of property involved. A few states exclude real estate from affidavit procedures entirely. Checking your state’s specific rules before filing matters — using the wrong procedure can create complications later.
Tax Filings the Representative Handles
The personal representative is responsible for several tax filings during probate, and missing a deadline can result in penalties charged against the estate.
The representative must file a final federal income tax return (Form 1040) covering January 1 through the date of death. It’s prepared like any other individual return and is due on the usual April 15 deadline the following year. On a paper return, the representative writes “DECEASED,” the person’s name, and the date of death across the top.1Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
From the moment of death, the estate itself is a separate taxpayer. If it earns $600 or more of gross income in a tax year — from interest, rent, dividends, or asset sales, for instance — the representative must file Form 1041. The estate keeps filing Form 1041 each year until all assets are distributed and the estate is closed.2Internal Revenue Service. Instructions for Form 1041
Federal estate tax (Form 706) applies only to very large estates. For a 2026 death, the basic exclusion amount is $15,000,000, and married couples can effectively double it through portability of the unused exclusion.3Internal Revenue Service. IRS Releases Tax Inflation Adjustments for Tax Year 2026 Only the value above the exclusion is taxed, at rates that top out at 40%.4Office of the Law Revision Counsel. 26 USC 2001 – Imposition and Rate of Tax When required, Form 706 is due nine months after the date of death, with an automatic six-month extension available.5Internal Revenue Service. Instructions for Form 706 Most estates fall well under the federal threshold and owe nothing. A handful of states impose their own estate or inheritance taxes with lower exemptions, so the representative should check state rules too.