Probate Basics
What Is Probate?
Probate is the court-supervised process of validating a deceased person's will, identifying their assets, paying debts and taxes, and distributing what's left to beneficiaries. Some assets go through probate; others bypass it entirely. The process takes 6 to 18 months in most states and costs 3 to 7 percent of the gross estate. Most middle-class estates can avoid most of this with basic planning.
The Short Answer
Probate validates the will, settles debts, and distributes assets - through the court. Takes 6-18 months. Costs 3-7% of gross estate ($30,000-$60,000 on a $1M estate). Required for assets titled solely in the decedent's name. Avoided by: revocable living trusts, joint ownership with right of survivorship, beneficiary designations on retirement and life insurance, payable-on-death (POD) and transfer-on-death (TOD) accounts. Most middle-class estates can avoid most probate.
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What probate does
Validates the will. Court reviews the will for proper execution and authenticity. Witnesses or self-proving affidavit confirm.
Appoints the personal representative (executor or administrator). The person nominated in the will, or if there's no will, a person prioritized by state intestacy law.
Issues Letters Testamentary (with a will) or Letters of Administration (without). The legal document authorizing the personal representative to act.
Inventories the probate assets. Personal representative identifies all assets the decedent owned at death, often using appraisers.
Notifies creditors. Statutory notice typically through publication and direct notice to known creditors.
Pays debts and taxes. Funeral expenses, taxes, secured debts, then unsecured debts in priority order.
Distributes remaining assets per the will (or per intestacy law if no will).
Closes the estate. Final accounting filed with court; personal representative discharged.
What goes through probate
Assets titled solely in the decedent's name with no beneficiary designation: bank accounts, brokerage accounts, real estate, vehicles, personal property, business interests, valuable collections.
Assets owned as tenants in common (each owner has a divisible interest). The decedent's share goes through probate.
Property titled in just the decedent's name even if jointly held in practice (e.g., one spouse on title, the other a contributor).
Personal property without a clear ownership method (jewelry, art, household goods).
Most middle-class probate estates consist of: a home, a checking account, a brokerage account, a car or two, household goods. Total probate value $200,000-$2,000,000 is common.
What does NOT go through probate
Assets in a revocable living trust. The trust is the legal owner; trust terms control distribution; no court involvement.
Joint accounts with right of survivorship. The surviving joint owner becomes sole owner automatically.
Real estate owned as joint tenants with right of survivorship or tenants by the entirety. Surviving co-owner takes by operation of law.
Retirement accounts (401k, IRA, 403b) with named beneficiaries. The beneficiary form controls; no probate.
Life insurance with named beneficiaries.
Bank accounts with payable-on-death (POD) designations.
Brokerage accounts with transfer-on-death (TOD) designations.
Real estate with transfer-on-death deeds (allowed in many states).
Property held in business entities (LLC, corporation) - the entity continues, ownership of business interests may be controlled by buy-sell agreements.
Most modern estates can route 80-95% of value through these probate-avoidance mechanisms.
What probate costs
Filing fees. $200-$1,500 depending on state and estate size.
Personal representative fees. Set by state law: California has a statutory percentage (4% of first $100,000, 3% of next $100,000, 2% of next $800,000, etc.). Other states use "reasonable compensation." On a $1M estate: $20,000-$23,000.
Attorney fees. Typically same scale as personal representative fees in fee-schedule states; reasonable hourly elsewhere. On a $1M estate: $20,000-$50,000.
Probate referee fees (California). Approximately 0.1% of inventory value.
Bond premium. If required, 0.5%-1% per year of estate value. Many wills waive bond.
Appraisal fees. $300-$1,500+ for real estate; $1,500-$5,000 for business interests.
Accounting fees. $500-$2,500 for final estate accounting.
Total probate cost on a $1M estate: $30,000-$60,000 nationally; $46,000-$60,000 in California. The cost is a percentage of gross estate, paid before distributions to beneficiaries.
How long probate takes
Best case: 4-6 months for very small estates with simplified procedures.
Typical: 6-12 months for uncontested middle-class estates.
California: 12-18 months minimum due to mandatory creditor-claim period and court calendars.
Contested estates: 1-3+ years.
Estates over $1M (federal estate tax filing required): 12-24 months minimum.
Multi-state probate (real estate in multiple states): 12-24 months plus ancillary probate in each additional state.
Why probate is slow: statutory creditor-claim periods (typically 4 months from publication), tax-filing deadlines (federal Form 706 due 9 months after death), court calendars, and the need to file accountings.
Small estate procedures
Most states have streamlined procedures for small estates that skip much of formal probate.
Small estate affidavit. Estates below a state threshold can transfer assets via affidavit without court appearance. Threshold varies $20,000-$166,000 depending on state.
California: $184,500 (2024+) for small-estate affidavit (excludes real estate values above $61,500).
Florida: $75,000 plus the home for summary administration.
Texas: $75,000 small estate affidavit; muniment of title for wills only.
New York: $50,000 voluntary administration.
These procedures finish in 30-90 days vs. 6-18 months for full probate.
Real estate often complicates eligibility - many small-estate procedures exclude real-estate value from the threshold or have separate rules for real property.
How to avoid probate
Revocable living trust. The most flexible probate-avoidance tool. Holds assets during life; distributes at death without court involvement.
Beneficiary designations. Retirement accounts, life insurance, annuities. Update them after major life events.
Joint ownership with right of survivorship. Bank accounts, real estate. Watch for unintended consequences (creditor exposure of one owner can attach to joint property).
Payable-on-death (POD) bank accounts. Designate a beneficiary on the bank account; passes outside probate.
Transfer-on-death (TOD) brokerage accounts. Same concept for investment accounts.
Transfer-on-death deeds. Allowed in many states for real estate. Records a deed effective at death.
Small estate / simplified procedures. For small estates, qualifies for affidavit treatment.
Lifetime gifts. Reduces probate estate (and may have tax benefits or consequences).
Combined approach. Most modern estate plans use a revocable living trust for the bulk of assets plus beneficiary designations for retirement and life insurance plus joint ownership for some accounts. Probate avoidance becomes near-complete.
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Frequently asked questions
Do all wills go through probate?
Yes - having a will doesn't avoid probate. The will is what probate validates. To avoid probate, you need probate-avoidance mechanisms (trusts, beneficiary designations, joint ownership).
Is probate public?
Yes. Probate filings are public court records. The will, the inventory, the accounting are all available for review. Trusts (which avoid probate) are private.
Can I avoid probate after death?
Mostly no. Once probate is needed, it has to be done. Some assets may be diverted to small-estate procedures. The time to plan is during life.
Do I need a probate lawyer?
For most estates with real estate, yes. Some states have intentional self-help probate procedures for small estates. The 6-18 month timeline and complexity make professional help the right call for most estates over $50,000.
What if there's no will?
Intestate succession applies. State law determines who inherits - typically spouse first, then children, then parents, then siblings. Probate (sometimes called "administration" without a will) is still required.
How much does probate cost?
3-7% of gross estate typically. On a $500,000 estate: $15,000-$35,000. On a $1M estate: $30,000-$60,000. Mostly attorney and personal-representative fees.
Related reading
One last thing. This article is general information, not legal advice. Every situation is different. The free consultation is the right next step. — The LawFirmSquare team