How the probate process works, step by step
Probate is run under state law, usually in the county where the person lived, so procedures differ. Many states offer a simpler informal or unsupervised track for uncontested estates, keeping formal, court-supervised probate for disputes, but the core steps are much the same everywhere.
The notice to creditors is the step that protects the estate and its heirs. In Arizona and other states that follow the Uniform Probate Code, creditors must present claims within four months after the notice is first published, or, for a known creditor mailed a notice, within 60 days of that mailing if later, or they are barred for good.
- File the Will, if there is one, and a petition with the probate court.
- The court admits the will and appoints the executor it names, or appoints an administrator, and issues letters giving that person legal authority to act.
- Notify heirs and beneficiaries, and give notice to creditors, typically by publication plus letters to known creditors.
- Take inventory of the assets and have them valued.
- Pay valid debts, final expenses and taxes, and sell property if needed.
- Account for everything to the court or the beneficiaries, distribute what remains and close the estate.
What goes through probate and what doesn’t
Only the probate estate goes through the court: assets titled in the person’s sole name with nothing else to direct them. Assets with a living named beneficiary, a transfer-on-death or payable-on-death registration, a surviving joint owner or a revocable living trust as owner pass directly, as the table shows. They can fall back in, though: when every named beneficiary has died, many plans and policies pay the estate, and the money goes through probate after all.
The probate estate is not the estate for tax purposes. The IRS gross estate counts everything the person owned or had certain interests in, probate and non-probate property alike, so avoiding probate does nothing to reduce estate tax. The reverse also holds: an estate far below the federal exclusion can still face a long and costly probate.
Real estate is probated in the state where it sits. A vacation home or rental property in a second state in your own name usually means a second, ancillary probate there, with its own filings and local counsel, one of the most common reasons people put out-of-state property into a trust.
How much probate costs, and what you get for it
Probate costs include court filing fees, the executor’s compensation, attorney fees, appraisals, publication of notices and sometimes a bond. Most states let the executor and attorney charge a reasonable fee, often hourly, reviewed by the court.
A few states set fees by statute. California is the best-known example: under Probate Code sections 10800 and 10810, the executor and the estate’s attorney are each entitled to a percentage of the gross value of the probate estate, without subtracting mortgages or other debts. A heavily mortgaged house therefore generates fees on its full value, not on the equity the heirs receive.
Delay is a cost too: assets can be frozen for months while heirs keep paying the mortgage, insurance and upkeep on an empty house. The will and the court file also generally become public records.
Probate does buy something. The creditor deadline gives heirs a clean cutoff against late claims, and court oversight protects beneficiaries when family members distrust the executor or one another.
The executor’s tax duties
The personal representative is responsible for the decedent’s and the estate’s taxes, and IRS Publication 559 spells out what that means. The IRS can also file its own claim in a probate proceeding for unpaid tax.
An executor who distributes the estate before paying taxes they knew about, or should have found with due care, can become personally liable for them. Before closing, an executor can ask the IRS for a prompt assessment, which shortens its time to assess most returns to 18 months, and can request a discharge from personal liability.
- Get an employer identification number (EIN) for the estate, and file Form 56 to tell the IRS you are acting as its Fiduciary.
- File the decedent’s final Form 1040, due on the date it would have been due had they lived.
- File Form 1041 for any year in which the estate has gross income of $600 or more, such as interest, dividends or rent received during probate.
- File Form 706 if the gross estate plus adjusted taxable gifts exceeds $15,000,000 for a 2026 death, or to elect portability for a surviving spouse, due nine months after death.
How to keep assets out of probate
Avoiding probate is less about clever planning than about paperwork done in advance, as part of broader estate planning. Each tool moves an asset out of the probate estate by giving it a new owner at death who does not need a court order, and each has trade-offs.
A will does not avoid probate; it is the set of instructions probate follows. Most people who avoid probate still keep one as a backstop for anything the tools below miss, such as a refund check or an account opened late in life.
- Name primary and contingent beneficiaries on every retirement account, annuity and life insurance policy.
- Add payable-on-death and transfer-on-death registrations to bank and brokerage accounts, and use a transfer-on-death deed for real estate where your state allows one.
- Own property jointly with right of survivorship, which is simple between spouses but can expose the asset to a co-owner’s creditors and hand control to them.
- Fund a revocable living trust, which costs more up front but avoids probate in every state where it holds property and also covers incapacity.
- Rely on your state’s small-estate procedure: below a dollar limit set by state law, heirs can often collect assets with a sworn affidavit instead of a full probate.
Illustrative numbers
Statutory probate fees on a $1 million California estate
- California statutory fee
- Ordinary compensation for the executor under Probate Code § 10800, and the same amount again for the estate’s attorney under § 10810
- Estate value
- Appraised value of the probate inventory, plus gains on sales and receipts, minus losses on sales, with no deduction for mortgages or other debts
Above $25 million the court sets a reasonable fee, and most other states use reasonable fees rather than a schedule.
House in the decedent’s sole name, carrying a $400,000 mortgage$900,000 appraised value
Brokerage account with no TOD registration$100,000
401(k) with a named beneficiary$600,000, outside probate and outside the fee base
Fee base (the mortgage is not subtracted)$1,000,000
Executor’s fee: 4% × $100,000 + 3% × $100,000 + 2% × $800,000$4,000 + $3,000 + $16,000 = $23,000
Attorney’s fee, same schedule$23,000
Statutory fees total $46,000 before court costs and appraisal, about 7.7% of the $600,000 of equity actually passing through probate. Had the house and brokerage account passed outside probate, through a living trust or transfer-on-death registrations as the 401(k) did through its beneficiary form, neither statutory fee would apply.
At a glance
Which assets usually go through probate
| Asset | Through probate? | Why |
|---|---|---|
| Real estate or accounts in your sole name, no beneficiary | Yes | Nothing else directs where they go, so the will or intestacy law does |
| Bank or brokerage account with a POD or TOD registration | No | Transfers directly to the named beneficiary |
| 401(k), IRA, annuity or life insurance with a living beneficiary | No | The beneficiary designation controls |
| The same accounts when every named beneficiary has died | Often yes | Many plans and policies then pay the estate |
| Joint tenancy with right of survivorship | No, at the first death | The surviving owner takes it automatically |
| Assets titled in a revocable living trust | No | The successor trustee distributes them under the trust |
| Real estate in another state in your own name | Yes, in that state too | Property is probated where it is located (ancillary probate) |
Put it in your plan
Probate in MoneyWhatIf
MoneyWhatIf does not simulate probate or separate probate from non-probate property. Its Estate page does charge settlement costs against the projected estate: an administration-cost assumption, 1% by default and adjustable up to 10%, and a property liquidation cost, 6% by default and adjustable up to 15%. Raising them shows how much fees and selling costs could take from the estimated net to beneficiaries. The page also treats the final year’s unsettled income tax return as a debt the estate must clear.
Open your forecastCommon questions
Probate FAQs
How long does probate take?
It depends on the state, the estate and whether anyone objects. The creditor claim period sets a floor, four months after published notice in Uniform Probate Code states, and an estate that owes federal estate tax must first file Form 706, due nine months after death. Many simple estates close within a year, while contested wills, hard-to-sell property or complex taxes can stretch probate out for several years.
Does every estate have to go through probate?
No. If every asset passes by beneficiary designation, transfer-on-death registration, joint ownership or a funded trust, there may be nothing left to probate. Estates below a dollar limit set by state law can often use a small-estate affidavit or a short summary procedure instead; in Arizona, for example, heirs can collect up to $200,000 of personal property by affidavit 30 days after death.
Who pays the debts of someone who died?
The estate does. The executor pays valid debts, final expenses and taxes from estate assets before heirs receive anything, and creditors who miss the claim deadline are generally barred. Family members are usually not personally liable for a relative’s debts, though co-signers and joint account holders are, and state rules on spouses vary. An executor who pays heirs first and leaves taxes unpaid can be held personally liable.
What is the difference between an executor and an administrator?
Both are personal representatives with the same duties: collect the assets, pay creditors and distribute the rest. An executor is named in the will; an administrator is appointed by the court when there is no will or the named executor cannot or will not serve. Either receives letters from the court proving their authority. An agent under a power of attorney loses all authority at death, so even a trusted agent needs this appointment to act.