The probate process in the United States, explained step by step

Probate is the court-supervised process that settles a dead person's estate: a court confirms the will or names the heirs, appoints a personal representative, and that person gathers the assets, pays debts, expenses and taxes in a fixed order, then distributes what is left and asks the court to close the file. In the United States the process is a matter of state law, so the vocabulary, the deadlines and the costs change from one state to the next, while the sequence stays much the same.

This article covers probate in the United States and uses California as its worked illustration, with the figures read on the California courts' self-help pages, Judicial Council forms and the California Probate Code. It is general information, not legal or tax advice, and a rule quoted for California does not carry over to another state.

Whether you are the agent asked to list a house, the creditor waiting on an invoice or the relative just named executor, the stage the estate has reached decides who can sign, what can be sold and when money can move.

What is probate, and which assets go through it?

Probate applies only to the assets a person owned in their sole name at death with no mechanism that passes them to someone else automatically. Everything else, often the larger share of a person's wealth, moves outside the court file.

The assets that usually bypass probate fall into four groups:

• Assets with a named beneficiary. Life insurance, retirement accounts and annuities are paid by the institution to the person named on the beneficiary form, on proof of death.
• Accounts with a payable-on-death or transfer-on-death designation. A bank or brokerage account so designated goes to the named person; some states also allow a transfer-on-death deed for real estate.
• Property held jointly with a right of survivorship. The surviving owner takes the whole by operation of law.
• Assets held in a living trust. The trust, not the dead person, owns them, and the successor trustee carries out the trust's terms without a court appointment.

Two consequences follow. First, a will does not control these assets: a beneficiary form naming a former spouse beats a will that says otherwise, subject to each state's rules. Second, the size of the probate estate can be very different from the size of the person's wealth. In the worked example used throughout this article, the person leaves $1,960,000 in total, of which $700,000 (a $300,000 life insurance policy and a $400,000 retirement account, both with named beneficiaries) never enters the probate file. The probate inventory is the remaining $1,260,000.

An asset falls back into probate when the mechanism fails: the named beneficiary died first and no alternate was named, or the estate itself is the beneficiary.

What are the stages of probate, in order?

A full probate runs through eight stages, from filing the will to the court's order discharging the representative, and the order matters because each stage unlocks the next. The names of the papers differ by state; the sequence below is the common pattern.

Between stages two and seven the representative runs the estate as a fiduciary. The Judicial Council of California's statement of duties, which every California representative signs, puts the rules plainly: keep estate money separate from your own in an account titled as an estate account, keep complete records of every transaction, keep the assets insured, and pay no fee to yourself or your attorney without a prior court order.

Formal, informal or simplified: which procedure applies?

Most states offer more than one route: a formal proceeding before a judge, a lighter procedure with little or no court supervision, and a shortcut for small estates that avoids the court almost entirely. Which one applies depends on the state, the size of the estate, and whether anyone is contesting anything.

States that follow the Uniform Probate Code, a model law drafted by the Uniform Law Commission, use the terms "informal" and "formal": an informal probate is granted by a court officer without a hearing, and the representative then administers the estate without supervision unless an interested person asks the court to step in. Other states reach a similar result under another name. California keeps a single court proceeding but lets the court grant the representative authority under its Independent Administration of Estates Act, which allows many actions to be taken on notice to the beneficiaries rather than on a court order.

The small-estate affidavit is the shortest route of all. The successor signs a sworn statement that the estate is under the state's limit and that the waiting period has passed, presents it with a death certificate to the bank or other holder, and the holder releases the asset. No representative is appointed and no letters are issued.

How does probate work in California, with its deadlines and thresholds?

California's formal probate runs on a short list of statutory deadlines counted from two events, the death and the issuance of letters, and its small-estate limits are adjusted every three years. The California courts' self-help guide describes the whole process as typically taking 9 to 18 months and sometimes longer.

The will deadline falls on whoever holds the original, not on the family as a whole, and section 8200 makes a custodian who fails to deliver it liable for the damage caused. Non-cash assets are valued by a court-appointed probate referee unless the court waives the appraisal; the representative values the cash items. When the inventory includes real estate, form DE-147 also requires a change in ownership statement to be filed with the county at the same time.

California's shortcuts are set out in dollar limits published by the Judicial Council under Probate Code section 890. For a death on or after April 1, 2025:

• Personal property by affidavit. An estate valued at $208,850 or less can be collected by affidavit, with no court case, once at least 40 days have passed since the death. The limit was $184,500 for deaths from April 1, 2022 to March 31, 2025.
• Real property of small value. A separate affidavit procedure covers California real property worth $69,625 or less.
• The primary residence. A simplified court petition, not a full probate, can transfer the dead person's primary residence in California when it is worth $750,000 or less, under a change made by Assembly Bill 2016.

The Judicial Council states that the next scheduled adjustment of these amounts is April 1, 2028, so the figures above should be re-read on the current form before anyone relies on them. The date of death, not the date of filing, decides which column applies.

In what order are debts, expenses and taxes paid?

An estate pays its obligations in classes, each class in full before the next receives anything, and the beneficiaries are paid last. The order is set by each state's statute, with federal law placing certain debts owed to the government ahead of others.

California's order, in Probate Code section 11420, starts with debts owed to the United States or to California that have a statutory preference, then runs through seven classes:

1. Expenses of administration (court costs, the representative's and attorney's compensation, the cost of preserving the assets).
2. Obligations secured by a mortgage, deed of trust or other lien, paid from the proceeds of the property that secures them; any shortfall becomes a general debt.
3. Funeral expenses.
4. Expenses of the last illness.
5. Family allowance.
6. Wage claims.
7. General debts, which include credit cards, unsecured loans and unsecured judgments.

Within a class no creditor has preference over another. If the money runs out partway through a class, section 11420 gives each creditor in that class a proportionate share and the classes below receive nothing. That is the practical meaning of an insolvent estate: the heirs do not inherit the debts, but they inherit nothing either, and a general creditor may be paid cents on the dollar.

Taxes run on a separate track from the creditor claim process. The Internal Revenue Service requires the representative to file the dead person's final individual return, and a fiduciary income tax return on Form 1041 when the estate itself generates more than $600 of gross income in a year, for which the estate needs its own employer identification number. The federal estate tax return is a different filing that concerns few estates: according to the Internal Revenue Service, the filing threshold is $13,990,000 for deaths in 2025 and $15,000,000 for deaths in 2026. Some states levy their own estate or inheritance tax at lower thresholds, which is checked state by state.

How much does probate cost?

The cost of probate is the sum of court fees, administration expenses, and the compensation of the personal representative and the estate's attorney, and in some states that compensation follows a statutory percentage schedule. Elsewhere the standard is a reasonable fee, set by agreement or reviewed by the court, so there is no national figure.

California is one of the states with a schedule. Probate Code section 10800 sets the representative's compensation for ordinary services at 4% of the first $100,000 of estate value, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, 0.5% of the next $15,000,000, and a reasonable amount fixed by the court above $25,000,000. The attorney's compensation for ordinary services follows the same schedule under section 10810, and the court can allow more for extraordinary services such as litigation or a difficult sale.

The base is where estimates go wrong. Section 10800 measures the estate as the appraised value of the inventory, plus gains over appraisal on sales and receipts, minus losses on sales, without reference to encumbrances. A $900,000 house with a $250,000 mortgage counts for $900,000, not for the $650,000 of equity.

The schedule is regressive: the combined fee is 7.0% of a $200,000 estate, 4.6% of a $1,000,000 estate and 2.52% of a $5,000,000 estate.

On top of the statutory compensation come the filing fee, typically $435 according to the California courts' self-help guide, the cost of publishing the notice, the probate referee's appraisal fee, and a bond premium if the will does not waive bond. The same guide puts these administration costs at often well over $1,000.

What does a California probate look like in numbers?

On an illustrative California estate with a $1,260,000 inventory and a house sold during the administration, the two heirs share $883,600 after $110,000 of fees, costs, debts and taxes are paid from the estate. Every assumption below is illustrative except the statutory fee schedule and the filing fee.

The probate inventory holds a house appraised at $900,000 and carrying a $250,000 mortgage, a brokerage account of $280,000, bank accounts of $60,000 and a car valued at $20,000. The will names the two adult children as equal beneficiaries and one of them as executor. The house is sold during probate for $940,000, which is $40,000 over its appraised value, so the fee base under section 10800 is $1,260,000 plus $40,000, or $1,300,000.

The statutory fee on $1,300,000 is computed tier by tier: 4% of the first $100,000 is $4,000; 3% of the next $100,000 is $3,000; 2% of the next $800,000 is $16,000; 1% of the remaining $300,000 is $3,000. That makes $26,000 for the representative and $26,000 for the attorney, $52,000 in all, which is 4.0% of the fee base and about 4.95% of the $1,050,000 that remains once the mortgage is taken off.

The sale itself carries its own costs, assumed here at a 5% brokerage commission ($47,000) and 1% of other closing costs ($9,400). After those and the $250,000 mortgage payoff, the sale brings $633,600 into the estate account.

The administration costs of $3,000 are the $435 filing fee plus $2,565 assumed for publication, appraisal, certified copies and similar items. The $700,000 of life insurance and retirement money sits outside this table altogether: it was paid to its named beneficiaries by the insurer and the account custodian, and it bears none of the statutory fee.

How long does probate take?

A straightforward probate takes roughly a year, because the minimum is fixed by the hearing calendar and the creditor claim period, and the maximum by whatever is hardest to resolve. The California courts' self-help guide gives 9 to 18 months as typical for a formal probate there, and other states range on either side depending on their procedures.

Three things set the floor. The court must hear the petition before letters issue, so nothing can be sold or collected for the first weeks. The creditor period then has to run: in California a creditor has until the later of four months after letters or sixty days after being notified. Finally the court must hear and approve the closing petition, and California expects that petition, or a status report explaining the delay, within a year of letters.

The usual causes of an estate running past the typical range are:

• a will contest or a dispute over who the heirs are;
• real estate that is slow to sell, or that needs repairs or clearing first;
• a disputed creditor claim that must be litigated;
• a federal estate tax return, which extends California's closing deadline to 18 months;
• assets in more than one state, since real estate in another state usually needs a second, ancillary proceeding there;
• a missing heir or beneficiary who has to be located and notified.

A small-estate affidavit sits at the other extreme: in California it can be used 40 days after the death, and the timing then depends only on how quickly each holder of an asset processes the paperwork.

How is real estate sold during probate?

Real estate in probate is sold by the personal representative, never by the heirs, and either under the representative's own authority on notice to the beneficiaries or under a court confirmation procedure that opens the sale to higher bids. The buyer's first question is therefore whether letters have been issued and what authority they carry.

In California, a representative with full authority under the Independent Administration of Estates Act can sell real property without a confirmation hearing after giving the beneficiaries a notice of the proposed action and a period to object. Where the authority is limited, or a beneficiary objects, the sale goes to the court for confirmation, and two rules shape the price:

• The 90% floor. Under Probate Code section 10309, the court confirms a sale only if the offer is at least 90% of the appraised value and the appraisal was made within one year before the hearing. On the example's house, appraised at $900,000, the minimum is $810,000.
• The overbid. At the hearing anyone may bid higher. Section 10311 sets the first overbid at 10% more on the first $10,000 of the original offer and 5% more on the rest. On an accepted offer of $940,000, the first overbid must be at least $987,500, which is $940,000 plus $1,000 plus $46,500.

A buyer in a confirmed sale therefore accepts that the contract is not final until the hearing. Title companies ask for certified letters and, in a confirmed sale, the court's order before they insure the transfer. Other states handle this differently: many let the representative sell under a power granted in the will, and some require a court licence to sell in every case.

How are the heirs paid at the end?

Heirs are paid from the estate account, by the personal representative, after the court has approved the final account and ordered distribution or, in an unsupervised administration, once the claims period has closed and the debts and taxes are settled. In the worked example each of the two heirs receives $441,800, and the representative collects a signed receipt from each before asking the court for discharge.

Distribution can be in cash or in kind: a brokerage account may be transferred as it stands rather than sold, and a house may be deeded to the heirs jointly instead of being sold, in which case the court's order is recorded as the document of title. Representatives commonly hold back a reserve for final tax bills and closing costs and release it once those are paid. A preliminary distribution before the final account is possible in California with the court's permission.

How does probate differ in other countries?

Outside the United States the same job is done by different machinery. In England and Wales the executor applies for a grant of probate and administers the estate with little further court involvement, while in civil-law countries such as France and Germany the estate passes directly to the heirs, usually with a notary or a court certificate establishing who they are, and fixed shares reserved by law for close family limit what a will can change.

For an estate with assets in several countries, each asset is released under the law of the place where it sits, which is why local counsel is retained in each jurisdiction.