What is probate? The process, timeline and costs
Probate is the court process that settles a person’s estate after they die. Here is what it involves, how long it takes, what it costs and which assets skip it.
Key facts
- Probate proves the will, puts an executor in charge, pays debts and taxes, and hands out what is left under court supervision.
- Only some assets go through it: mainly property in the person’s name alone, with no co-owner or named beneficiary.
- A typical probate takes 6 to 12 months, and a simple one can wrap up in 3 to 6. A contested or complex one can take years.
- Costs are often estimated at 3% to 7% of the estate’s value, paid by the estate before heirs receive anything.
- Most states offer a faster procedure when the estate is small.
What probate is
When someone dies, their property does not pass to their family automatically. Someone needs legal authority to collect it, pay what is owed and transfer what remains. For property that has no other way to pass, that authority comes from the probate court in the county where the person lived.
The court confirms the will is valid, or applies state law if there is no will. It appoints a personal representative, called an executor when named in a will and an administrator when the court chooses one. That person manages the estate under the court’s oversight until it is closed; see executor duties.
Probate files are generally public. Anyone can look up the will and, in many cases, the inventory of what the person owned.
Which assets go through probate
Many assets pass outside probate because they already name who receives them. What usually goes through court is what the person owned in their own name, with no surviving co-owner and no beneficiary.
| Asset | Goes through probate? |
|---|---|
| Home or land in the person’s name alone | Usually yes, unless a transfer-on-death deed was recorded in a state that allows one |
| Property held in a living trust | No. The successor trustee distributes it |
| Property owned jointly with right of survivorship | No. It passes to the surviving owner |
| Bank account with a payable-on-death beneficiary | No |
| Brokerage account with a transfer-on-death beneficiary | No |
| Life insurance, 401(k) or IRA with a living beneficiary | No. It goes to the named beneficiary |
| Accounts, car and belongings in the person’s name, with no beneficiary | Yes, or a small estate procedure if the total is low enough |
If a named beneficiary has died, or the estate itself is named as beneficiary, the asset can end up in probate after all. Our guide on how to avoid probate covers each way around court.
The process, step by step
- File a petition. The executor named in the will, or a family member if there is no will, asks the probate court to open the estate and submits the original will.
- Get appointed. The court issues letters testamentary or letters of administration. Banks and other institutions ask for this document before they release anything.
- Notify heirs and creditors. Heirs receive notice, and creditors are notified directly or through a published notice. Most states give creditors a set window to file claims, and the estate generally cannot close before it ends.
- Inventory the estate. The representative locates and values the assets, sometimes with an appraiser, and reports them to the court where required.
- Pay debts, expenses and taxes. Valid claims, final bills, the final income tax return and any estate taxes are paid from estate funds.
- Distribute and close. What remains goes to the beneficiaries named in the will, or to the heirs under state law. The court then closes the estate, often after a final accounting.
How long probate takes
LegalZoom puts a typical probate at 6 to 12 months, about 3 to 6 months for a simple estate and a year or more for a complex one. The California courts say a formal probate there usually takes 9 to 18 months.
The main things that stretch the timeline:
- the creditor claim period, which sets a floor in most states;
- a busy court in a large county;
- real estate that has to be sold, or property in another state that needs its own proceeding;
- family disputes or a challenge to the will;
- an estate large enough to owe estate tax, which adds a tax return and IRS review.
What probate costs
Probate is paid from the estate before heirs receive their share. AARP cites a financial planner’s estimate that fees can take 3% to 7% of an estate’s value. Nolo notes attorney and court fees can reach up to 5% in some states. On a $400,000 estate, 3% to 7% would be $12,000 to $28,000.
The bill usually includes:
- court filing fees;
- attorney fees, billed hourly, as a flat fee or, in a few states, as a percentage set by law;
- the executor’s compensation, which family members often waive;
- appraisals, published notices, and a bond if the will does not waive one;
- accounting and tax preparation.
California sets probate fees by law. The attorney and the executor are each entitled to a fee based on the estate’s gross value, without subtracting a mortgage or other debts: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000 and 1% of the next $9 million, with lower rates above that. For a $500,000 estate, that is $13,000 each, or $26,000 if both take the full fee, before court costs and extra charges for unusual work.
Planning your own estate? A living trust and beneficiary designations can keep most of your property out of probate. The 2-minute quiz shows whether a trust is worth it for you.
Probate without a will
When someone dies without a will, they die “intestate.” The estate still goes through probate, but state law decides who inherits, usually the spouse and children first, then parents, siblings and more distant relatives. The court appoints an administrator, often a close family member, and may require a bond. Unmarried partners and stepchildren generally inherit nothing under these rules. See what happens if you die without a will.
When you can skip full probate
- Small estates. Most states let heirs collect property with a sworn affidavit, or through a short court procedure, when the estate is under a dollar limit set by state law. See small estate affidavits.
- Simplified probate. Many states offer an informal or independent administration with less court supervision when the will is clear and nobody objects.
- Property passing to a spouse. Some states have a simpler procedure for property that goes to a surviving spouse.
- Nothing left in probate. If every asset had a beneficiary, a co-owner or a trust, there may be nothing for the court to handle.
Do you need a probate attorney?
Not always. Some states and courts generally require the personal representative to have a lawyer, while others let families handle simple cases themselves with court self-help forms. An attorney is worth it when the estate owns real estate in several states, owes estate tax, has more debts than assets, includes a business, or when heirs disagree.
Spare your family the process
See in two minutes whether a will is enough or a living trust would keep your estate out of probate.
Take the quizFAQ
Does every estate go through probate?
No. If all of the person’s assets passed through a trust, joint ownership or beneficiary designations, or the estate qualifies for a small estate procedure, there may be no need for full probate.
Does having a will avoid probate?
No. A will tells the probate court what you want, but property that passes under a will generally goes through probate. A living trust, beneficiary designations and joint ownership are what keep assets out of it.
Can the executor sell the house during probate?
Often yes, but depending on the state and the type of administration, the executor may need court approval or must give heirs notice first.
Are heirs responsible for the deceased person’s debts?
Generally not personally. Debts are paid from the estate. If the estate runs out of money, most remaining debts go unpaid, unless an heir co-signed or shared the debt, and some states have special rules for spouses.
Is a probate file public?
Generally yes. Once a will is filed for probate, it becomes a public court record, along with other documents filed in the case.
Sources
- American Bar Association: The probate process
- California Courts: Formal probate
- LegalZoom: How long does probate take? (updated August 2025)
- AARP: Smart guide to estate planning (July 2026)
- Nolo: Why avoid probate?
- California Probate Code §10810 (attorney fees) and §10800 (executor fees)
OakTrust.com provides general information, not legal advice. Probate rules, deadlines and fees vary by state and county. For advice on an estate you are handling, talk to an attorney licensed in that state.