Probate: What Actually Happens

The short version

When someone dies, a court verifies their will (if one exists), pays their debts and taxes, and distributes remaining assets to heirs. Probate is the supervised process that makes all of that legal and binding. It exists to protect creditors and to give everyone with a claim a chance to be heard — not to make the process hard on purpose.

Assets that go through probate

• Assets in the deceased's name only, with no beneficiary designation
• Real estate titled in the deceased's name alone
• Bank accounts with no payable-on-death beneficiary
• Investments without transfer-on-death registration
• Personal property, vehicles, collectibles

Assets held in a living trust, jointly with a spouse, or with a named beneficiary generally skip probate entirely.

How long does it take?

What it costs

Most estates under $100,000 cost $2,000–$5,000 in legal and court fees. Estates over the federal exemption ($13.61M in 2024) may owe estate tax at 40% on the excess.

The actual probate process, step by step

The exact procedure varies by state, but the general flow is similar everywhere:

1. File the will with the probate court. Whoever has the original will (usually the executor named in it, or whoever found it among the deceased's papers) files it with the probate court in the county where the deceased lived. Most states give you a window of 30 days from death to do this.
2. Get appointed as executor (or administrator). If there's a will, the court formally appoints the person the will named as executor. If there's no will, the court appoints an administrator (usually the closest living relative). The court issues "letters testamentary" or "letters of administration" — the document that lets you act on behalf of the estate.
3. Notify heirs, beneficiaries, and creditors. The court requires formal notice to everyone with a potential claim. Most states require a published notice in a local newspaper, plus direct notice to known creditors.
4. Inventory and appraise the estate. The executor prepares a list of all assets the deceased owned at death, with values. This often requires professional appraisals for real estate, businesses, and personal property of significant value.
5. Pay debts, taxes, and administrative expenses. The estate pays valid creditor claims, the deceased's final income taxes, any estate tax due, attorney and executor fees, and court costs. This is paid out of the estate before any distribution to heirs.
6. Distribute what's left to the heirs. Whatever remains after debts and expenses is distributed according to the will (or state intestacy law if there's no will). The executor files a final accounting with the court, the court approves it, and the estate is closed.

Each step has a court filing, sometimes a hearing, and waiting periods. The "9-18 month typical" timeline isn't bureaucratic slowness — it's the time required for notice periods, creditor claim windows, tax filings, and court scheduling.

What happens if there's no will

If someone dies intestate (without a will), the court applies your state's intestacy law to decide who gets what. The law typically distributes the estate to the closest relatives: surviving spouse, then children, then parents, then siblings, then more distant relatives. The state never takes the property for itself — it goes to the next of kin by formula.

The problems with dying without a will: the state's formula for who gets what might not match your wishes (an unmarried partner gets nothing in most states, regardless of how long you were together), a young child's inheritance goes into a court-managed conservatorship, and the choice of executor goes to the court rather than to the person you'd have picked. None of these are catastrophic, but they're all avoidable with a basic will.

Common things that go wrong

• Missing the will. People who die without telling anyone where the will is force the family to either find it (which can take months) or treat the estate as intestate. Tell at least one trusted person where your will is.
• Outdated beneficiary forms. Retirement accounts and life insurance pay out to the named beneficiary regardless of what the will says. An ex-spouse listed on a 401(k) form will inherit the account, even if the will says the new spouse should.
• Unpaid debts nobody knew about. Creditors have a window to make claims. If you find a creditor six months in, you might be able to pay from the estate, but it can complicate the timeline.
• Family disputes. The most common cause of "complex, 2+ years" probates. Siblings disagreeing about who gets what, a child being disinherited, a new spouse vs. children from a previous marriage — these are the cases that drag on.
• Real property in multiple states. Each state has its own probate for property located there. A vacation home in another state may require a separate (ancillary) probate proceeding.

Probate avoidance strategies (and their tradeoffs)

Every "avoid probate" strategy has a cost. The tradeoffs:

• Revocable living trust. The most common. You transfer assets into the trust during your lifetime, name yourself as trustee, name a successor trustee. At death, the successor trustee distributes per the trust terms — no court involved. Cost: $1,000-$3,000 to set up, plus the work of retitling assets. Worth it if your estate would otherwise be complex.
• Beneficiary designations. Retirement accounts and life insurance pass by beneficiary form, not by will. Fill these out and update them after major life events.
• Joint ownership with right of survivorship. Add a joint tenant to property or accounts; the survivor owns the whole thing at death. Simple, but exposes the asset to the joint tenant's creditors and creates tax complications for some estates.
• Payable-on-death / transfer-on-death designations. Available in most states for bank accounts, brokerage accounts, and (in some states) real estate and vehicles. Lets you name a beneficiary without setting up a trust.
• Gifting during lifetime. Reduce the estate by giving assets away. Has gift tax implications for large gifts, and you give up control of the asset.

For most estates under a few hundred thousand dollars, a simple will plus updated beneficiary forms on retirement accounts is enough. The bigger and more complex the estate, the more valuable a trust becomes.

When to hire a probate attorney

For a small, simple estate (under $100K, no real property, no disputes), many families handle probate themselves using the court's self-help resources. For anything more complex, the cost of an attorney is usually less than the cost of getting it wrong.

Specifically, you probably want an attorney if:

• The estate includes real property
• There are disputes among heirs or beneficiaries
• The estate owes estate tax (over the federal exemption)
• The deceased owned a business
• There's real or personal property in multiple states
• You're the executor and don't have time to learn the procedural requirements

A common fee structure is 1-3% of the estate value for routine probate, more for complex or contested cases. Many states set statutory fee schedules; check your state's.

Related reading

Estate planning sits in the same broad category as retirement planning — both are about making sure the assets you spent decades building end up where you want them. The compound interest guide covers the wealth-building side; this guide is the wealth-transfer side. For the actual cost-of-living assumptions that drive estate planning, the Progress Tracker lets you model the impact of estate-transfer costs on your portfolio value.

Last updated 2026. Estate law varies by state and country; this is general information, not legal advice. See our Editorial Policy for how we approach this content.