Estate & Probate Guide

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This probate guide covers what happens to assets, debts, and property after someone dies in the United States. When a family member dies, the estate and probate process begins whether the family is ready or not. Assets need to transfer to heirs. Debts need to be paid. Property needs to be retitled. Tax returns need to be filed. Children may need guardians. All of this happens under state law, in county courts, on timelines the family did not choose. This probate guide explains how the process actually works, when it is required, how to avoid it, what executors do, and where state law makes meaningful differences. Every state-specific probate guide linked from this page is written for the specific laws, forms, and county procedures that apply where the deceased lived.

What this probate guide covers

The estate and probate topic spans more ground than most people realize. This probate guide and the supporting state guides cover six distinct areas of estate and probate law and practice, each with its own state-specific variations.

Probate filing and administration. The court-supervised process of validating a will, identifying assets, paying debts and taxes, and distributing the remaining estate to heirs. Probate is required for most estates of meaningful size unless the deceased used estate planning tools to avoid it. The process runs through county probate courts (sometimes called Surrogate’s Court or Orphans’ Court depending on the state) and follows state-specific rules for timelines, notices, and approvals.

Wills and testamentary instruments. A valid will controls how a probate estate is distributed and who serves as executor. Each state has specific rules for what makes a will valid: witnesses, signature requirements, handwritten (holographic) wills, and self-proving affidavits. A will that meets one state’s requirements may be invalid in another state.

Probate avoidance strategies. Living trusts, joint ownership with right of survivorship, transfer-on-death (TOD) designations, payable-on-death (POD) accounts, and beneficiary designations all transfer assets outside of probate. Estate planning that uses these tools strategically can move significant portions of an estate to heirs without court supervision.

Executor and personal representative duties. The person responsible for administering an estate has legal obligations that span months or years. Filing the will with the court, inventorying assets, notifying creditors, paying debts, managing real property, filing tax returns, and distributing assets to heirs. Mistakes create personal liability.

Inheritance and intestate succession. When someone dies without a will, state intestate succession laws determine who inherits. The rules vary significantly between community property states and common law states, between states with strong spousal protections and those without, and between states that recognize same-sex relationships in their succession statutes and those that have not updated their laws.

Special situations. Estates with minor children require guardianship determinations. Estates with disabled beneficiaries may need special needs trusts. Estates with business interests, real property in multiple states, or significant tax exposure trigger ancillary procedures. Each of these special situations has guidance in the state-specific probate guide resources linked below.

Universal probate guide: how probate works regardless of state

Five core questions apply to estate and probate matters regardless of which state controls the estate. Each universal probate guide linked here addresses one of them in depth.

How probate works in the United States. The full probate process from death through final distribution typically runs six to twelve months for a straightforward estate and can extend to several years for contested estates or complex assets. The process is broadly similar across states: file the will, get the executor appointed, inventory the assets, notify creditors, pay debts and taxes, distribute remaining assets, close the estate. State-specific details determine the precise procedures and timelines. Our universal probate guide on the process walks through each phase in detail.

When you need probate (and when you don’t). Probate is not always required. Small estates often qualify for simplified procedures, summary administration, or affidavit-only transfers. Assets held in joint tenancy with right of survivorship transfer automatically to the surviving owner. Assets with beneficiary designations transfer outside probate. A will only controls assets that would otherwise go through probate. Understanding which of the deceased’s assets actually require probate is the first step in evaluating whether the family needs to file anything at all. The probate guide on when probate applies covers the qualifying thresholds.

How to avoid probate completely. Estate planning during life can move every asset out of the probate process. Living trusts hold assets that pass to beneficiaries on death without court involvement. Joint ownership transfers property automatically. Beneficiary designations on accounts and investments pass directly. Real estate can be retitled with transfer-on-death deeds in states that allow them. The probate guide to avoidance strategies covers each tool in depth.

Common probate mistakes to avoid. Executors create personal liability when they distribute assets before paying debts. Heirs lose claims when they miss notice deadlines. Wills get invalidated by missing witness signatures or improper execution. Out-of-state property triggers ancillary probate in other states. Tax returns get filed late. The probate guide to common mistakes catalogs the most expensive errors and how to prevent them.

When to hire a probate attorney. Self-representation is possible in probate, and many estates handle it without a lawyer. The complexity threshold where DIY stops working depends on estate size, family dynamics, and asset complexity. Estates with contested claims, business interests, multiple state property, federal estate tax exposure, or family conflict almost always benefit from attorney representation. The probate guide to hiring an attorney covers the decision framework.

Probate guide by state

State law controls probate. The county probate court applies state law to determine how the estate is administered, who inherits, and what procedures the executor must follow. Two estates with identical assets can move through completely different processes depending on which state controls. Florida and California both have summary administration procedures for small estates, but the thresholds, requirements, and outcomes differ substantially. Texas has independent administration that allows executors to act without court supervision for most decisions; New York requires court approval for nearly every executor action.

The state-specific probate guide content covers these distinctions in operational detail. Each state probate guide is written for the specific probate code, court rules, and county procedures of that state. Filing fees, deadline requirements, summary administration thresholds, intestate succession rules, and executor compensation all vary by state.

State probate guide coverage at launch:

State probate guide content for the remaining 45 states is being added as the site expands.

What makes estate planning different across states

Beyond the universal probate guide content and state-specific procedures, certain state-level distinctions deserve mention because they shape outcomes in ways estate planners must address.

Community property versus common law. Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) are community property states. Property acquired during marriage belongs equally to both spouses regardless of whose name is on title. Common law states treat property based on titling. The distinction affects what passes through probate, what the surviving spouse inherits automatically, and how estate plans should be structured.

Spousal elective share rules. Most non-community-property states give surviving spouses the right to claim a percentage of the estate even if the will leaves them less. The percentage varies by state, typically ranging from one-third to one-half. The elective share interacts with other estate plan provisions in ways that require careful planning.

State estate and inheritance taxes. The federal estate tax exemption is high enough that most estates pay no federal estate tax according to IRS estate tax guidance. But a handful of states impose their own estate taxes with lower exemption thresholds: Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, and Washington. Six states impose inheritance taxes on beneficiaries: Iowa, Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania. State-specific probate guide content addresses the tax implications for residents of these states.

Homestead protection. Florida famously protects homestead property from creditor claims and limits how it can be devised under a will. Texas has similar homestead protections. Other states have weaker protections or none. Homestead rules affect probate strategy for primary residences in protected states.

Recognition of out-of-state wills. Most states recognize wills that were valid when executed in another state. A few states have specific witnessing or execution requirements that can invalidate out-of-state wills. Estate planning across state lines requires understanding which state will eventually control.

Recommended probate guide resources

The right professional help depends on what you need to accomplish.

For document preparation and DIY filing, LegalZoom and LawDepot offer state-specific probate forms, will templates, and trust documents. Both services provide guided document preparation that produces legally valid forms for self-filing. LegalZoom offers attorney consultation packages; LawDepot is purely DIY. Each is appropriate for straightforward estates where the user is comfortable handling the court filing themselves. The LegalZoom review and LawDepot review cover the trade-offs in detail.

For full attorney representation, the American Bar Association lawyer referral directory connects users with state and local bar association referral services. Most state bar associations operate lawyer referral programs that match consumers with licensed estate attorneys in their county. Initial consultations are often free or low-cost. Attorneys typically bill hourly for estate work, though some offer flat-fee probate administration for routine estates.

For specialized situations, elder law attorneys handle estates involving Medicaid planning, special needs trusts, and care-related matters. Estate planning attorneys handle the lifetime planning that prevents probate complications. Probate litigation attorneys handle contested estates, will challenges, and breach of fiduciary duty claims against executors. The National Academy of Elder Law Attorneys maintains a directory of certified elder law specialists.

Frequently asked questions

The questions readers ask most often before opening any probate guide research come down to a handful of practical concerns.

How long does the probate process take?

A typical uncontested probate runs six to twelve months in most states. The timeline extends when the estate contains business interests, out-of-state property, contested claims, or complex tax situations. Some states (Texas with independent administration) move faster than others (New York with court-supervised administration). The executor’s diligence affects the timeline significantly. Each state probate guide covers the typical timeline for that state.

Can I handle probate without an attorney?

Yes, in nearly every state. Probate courts are designed to accept self-represented executors and beneficiaries. Whether you should depends on the complexity of the estate, your comfort with court procedures, and the dynamics among the heirs. Simple estates with cooperative heirs are handled successfully by self-represented executors regularly. Complex or contested estates typically require attorney representation. The probate guide section on DIY versus attorney representation walks through the decision framework.

What happens if there is no will?

The estate passes through intestate succession under state law. State statutes determine who inherits and in what proportions. Surviving spouses, children, parents, and siblings inherit in a specific order that varies by state. The probate process still occurs but is called administration rather than probate. The court appoints an administrator (often a surviving family member) to perform the same duties an executor would perform under a will.

How much does probate cost?

Costs vary widely by state and estate complexity. Court filing fees run from under $100 to over $500 depending on the state. Executor compensation is typically a percentage of the estate (often 2-5% by state statute). Attorney fees range from flat fees of a few thousand dollars for routine estates to hourly billing that produces significant costs for complex or contested estates. Total costs for a routine attorney-handled probate typically run 3-7% of the gross estate value.

Do all assets go through probate?

No. Only assets that the deceased owned in their individual name without a beneficiary designation go through probate. Assets held in joint tenancy with right of survivorship transfer automatically to the surviving owner. Assets with beneficiary designations (life insurance, retirement accounts, payable-on-death accounts) pass directly to named beneficiaries. Assets held in a living trust pass according to the trust terms without probate. Many estates have substantial assets that bypass probate entirely.

What is the difference between executor and administrator?

An executor is appointed under the deceased’s will. An administrator is appointed by the court when there is no will or when the will does not name an executor. Both perform the same fundamental duties: collecting assets, paying debts, filing taxes, and distributing the estate. The court oversight may be slightly more involved for administrators than for executors named in a valid will.

Can a will be contested?

Yes. Common grounds for will contests include lack of testamentary capacity (the testator did not understand what they were doing), undue influence (someone manipulated the testator), improper execution (the will did not meet state requirements for witnesses or signatures), fraud, and revocation by a later will. Will contests are difficult to win because the law presumes the will is valid, but they do succeed in cases where the evidence supports the challenge.

Related life event topics

Estate and probate matters frequently overlap with other county-level life events. The topics most commonly connected to this probate guide:

Marriage and divorce. Marital status affects probate outcomes through spousal elective share rules, community property rules, and intestate succession. Divorce typically revokes provisions in a will that favored the former spouse. Marriage usually grants the new spouse elective share rights regardless of an older will’s terms.

Property and real estate. Real property requires deed transfer after death. Real property in multiple states triggers ancillary probate. Homestead property has special protections in some states. Property tax matters continue during probate and after distribution.

Seniors and aging. Estate planning is most critical for seniors and their families. Long-term care costs can deplete estates before probate. Medicaid planning, special needs trusts, and elder financial abuse all intersect with estate planning. Many probate guide questions originate in senior care situations.

Birth and vital records. Death certificates are required for nearly every step of probate. Certified copies must be ordered from the state vital records office where the death occurred. Estates frequently require multiple certified copies for different institutions.

Court records and legal. Probate court records are generally public. Will filings, executor appointments, inventory filings, and final accountings all become part of the court record. Researching estate situations often requires accessing probate court records.

Sources and references

The probate guide content on CountyOffices is based on each state’s probate code, court rules, and official government publications. Source materials include state statutes, state probate court rules, court forms published by state administrative offices, state bar association publications, and federal tax regulations.

External authority sources cited in this probate guide:

Sources and references

The probate guide content on CountyOffices is based on each state’s probate code, court rules, and official government publications. Source materials include state statutes, state probate court rules, court forms published by state administrative offices, state bar association publications, and federal tax regulations.

External authority sources cited in this probate guide:

Each state probate guide cites the relevant state probate code sections, court rules, and county procedures specific to that state. Last reviewed dates are visible on every probate guide.

This probate guide is informational only and does not constitute legal or tax advice. For advice specific to your situation, consult a licensed attorney in the state where the estate is being administered.