What Is Probate? How It Works and When It's Required

Probate is the court process that proves a will is valid, gives someone the legal authority to manage a dead person's estate, pays their debts and taxes, and passes the rest to the heirs. It only applies to property that was in the person's name alone, with no beneficiary or co-owner. Each state runs its own system, so the forms, fees and timing depend on where the person lived. This guide covers the United States. For England and Wales, see our UK probate guide.

What does probate mean?

Probate is a legal proceeding in a state court, usually in the county where the person lived. The Legal Information Institute describes it as the process by which a court proves that a will is valid. In everyday use, the word covers the whole job of settling the estate under the court's oversight: collecting the assets, settling debts and taxes, and distributing what remains.

The person in charge is called the personal representative. If the will names someone, that person is the executor. If there is no will, or the named person can't serve, the court appoints an administrator. You can read more in our guide to what an executor does. The court gives them a document, called letters testamentary (with a will) or letters of administration (without one). Banks, title companies and other institutions treat that document as proof that the person can act for the estate.

Which assets go through probate?

What matters is how each item is titled, not how much it is worth. Property that has a built-in way to pass to someone else does not need a court to transfer it. The Legal Information Institute calls these "nonprobate transfers." They include living trusts, joint ownership with right of survivorship, payable-on-death (POD) accounts, beneficiary designations on retirement plans and life insurance, and transfer-on-death security registrations.

For a full walk-through of finding and sorting each asset, use our estate inventory checklist.

Do you always need probate?

No. If everything the person owned passed by beneficiary form, survivorship or trust, there may be nothing for a court to do. If a few small items were in the person's name alone, most states let families use a shorter process, often with a sworn statement (an affidavit) instead of a full case. Our guide to small estate probate lists example limits by state.

Even when you don't expect a full probate, the original will may still have to go to the court. Many states require whoever holds it to file it after the death. Florida, for example, sets 10 days after the custodian learns of the death. California sets 30 days. Ask the court clerk what your state requires.

How does probate work, step by step?

The exact order varies by state, but most probate cases follow this path.

1. Find the original will and file it. The court usually wants the signed original, not a copy. Ask the person's lawyer, bank, safe deposit box and home files. Our guide on finding out whether a will exists can help.
2. Petition the court. The named executor, or a close relative if there is no will, files a petition to open the estate. Interested people, such as heirs and beneficiaries, receive notice.
3. Get appointed and receive letters. Once the judge approves, the court issues letters. Some states also require the representative to post a bond, unless the will waives it.
4. Take stock of the estate. The representative secures property, opens an estate bank account, and lists and values everything owned as of the date of death. Many states require a formal inventory. California's deadline is four months after letters are first issued, and Texas is 90 days after the representative qualifies.
5. Notify creditors. The estate gives notice to known creditors and often publishes a notice for others. Creditors then have a set window. In California it is the later of four months after letters are issued or 60 days after a creditor is mailed notice. In Florida it is the later of three months after the first published notice or 30 days after a creditor is served.
6. Pay debts, taxes and expenses. Valid claims, final bills, funeral costs, court costs and taxes come out of the estate before heirs receive anything. Family members are generally not personally liable for the dead person's debts, according to the FTC, unless they co-signed or are a court-appointed representative who failed to follow the rules.
7. Distribute what is left and close the estate. After the claim window ends and the court approves any final accounting your state requires, the representative gives each heir their share and collects receipts.

Which tax returns does the estate file?

Three federal filings come up most often, according to IRS Publication 559:

• Final income tax return (Form 1040). It covers income from January 1 to the date of death and is due on the usual April date for the year after the death.
• Estate income tax return (Form 1041). An estate that earns $600 or more in gross income during the tax year needs one. Income such as interest, dividends or rent keeps flowing in while probate is open. The representative first applies for an Employer Identification Number (EIN) for the estate.
• Estate tax return (Form 706). It is only required for estates above the exclusion amount, which is $13,990,000 for deaths in 2025 and $15,000,000 for deaths in 2026. The return is generally due nine months after death.

Some states have their own estate or inheritance taxes at lower levels. See our guide to estate tax by state.

How long does probate take?

It depends on the state, the court's workload and how complicated the estate is. One firm limit is the creditor window. Because creditors in states like California and Florida have about three to four months to make claims, a full probate there generally can't close before that period ends. Shorter small-estate routes can skip it. Estates with real estate to sell, disputes, unpaid taxes or out-of-state property often take a year or longer. Smaller estates that qualify for a simplified process can finish much faster. Our guide to how long probate takes looks at the factors in more detail.

How much does probate cost?

Costs usually include court filing fees, publishing the creditor notice, appraisals, and attorney and executor fees. Some states set attorney and executor fees by formula, and others allow a "reasonable" fee. The spread between states is wide, so use a real quote from a local attorney or the clerk's fee schedule rather than a national percentage. Our guide to probate fees and costs explains the main categories.

What happens if there is no will?

When someone dies without a valid will, they die "intestate." State intestacy law decides who inherits. The Legal Information Institute notes that the usual order starts with a surviving spouse and children, then moves to other close relatives such as parents and siblings. Property passes to the state, called escheat, only if no eligible relative can be found. The court appoints an administrator, often the closest relative who asks. Our guide on dying without a will covers how this affects the funeral.

Can you avoid probate?

For many families, yes, at least for the most valuable assets. The usual tools are:

• Naming beneficiaries on life insurance and retirement accounts
• Adding payable-on-death or transfer-on-death designations to bank and brokerage accounts
• Holding property jointly with survivorship rights, although this has drawbacks, so read our guide to joint ownership after death first
• Using a living trust, which also keeps the estate out of the public record
• Using a transfer-on-death deed for real estate, in states that allow it

Skipping probate does not skip debts or taxes. Our guide to bypassing probate explains the trade-offs, and the living trust vs will page compares the two main approaches.

What to do next

1. Find the original will and any trust documents. If you have the will, find out the filing deadline in your state.
2. Order certified death certificates. Our guide on how many to order can help.
3. List everything the person owned and owed, marking what has a beneficiary or co-owner.
4. Call the probate court clerk or a probate attorney to ask whether you need full probate, a small estate process or nothing at all.