What Is Probate and How Does It Work

What is probate and how it works is usually the first question families ask after a death. Probate is simply the court process that settles what a person owned and owed. The court confirms the will, if there is one. It appoints someone to take charge.

That person pays valid debts and taxes, then hands what is left to the right people. If there is no will, the state’s intestacy law decides who inherits. The word sounds intimidating, but the process is mostly paperwork and deadlines. Many families get through it without a courtroom fight. This guide explains what is probate and how it works in plain English, with real figures from real state laws.

What Is Probate and How It Works, Step by Step

Probate starts when someone files a petition with the local court. In California, that court sets a hearing 15 to 30 days after filing under Probate Code §8003. The court then issues “letters” — an order proving the executor can act.

An executor is the person named in the will. If there is no will, the court names an “administrator” instead. Either way, the job is the same. You gather the assets, tell creditors, pay what is owed, and distribute the rest.

Creditors get a fixed window to make claims. In California, that window is four months from the day letters are first issued, under Probate Code §9100. Creditors who get personal notice later have 60 days from that notice. As a result, most estates cannot close in under six months, even simple ones.

Small Estates: The Exact Dollar Limits by State

Here is the good news. Most estates never need full probate. Every state has a shortcut for smaller estates, and the dollar limits are written into statute.

Timing matters too. California requires you to wait 40 days after the death before using the affidavit. New York’s shortcut cannot be used for real estate at all, no matter the value. Texas offers a different tool called a muniment of title under Estates Code §257.001. If there are no unpaid debts besides a mortgage, the court can admit the will and skip administration entirely.

Cost is the other reason people ask what is probate and how it works. California is unusual because its fees are set by formula, not by the hour. Under Probate Code §10810, the attorney earns 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. The executor may claim the same schedule. On a $500,000 house, that is $13,000 each — and it is figured on gross value, so the mortgage does not reduce it.

What to Do First, Without Panicking

Start by finding the will and ordering 8 to 10 certified death certificates. Banks and insurers each want their own copy. Then list what the person owned and how each item was titled.

Titling is the whole ballgame. Assets with a named beneficiary skip probate automatically. That includes life insurance, retirement accounts, payable-on-death bank accounts, and property held in joint tenancy or in a living trust. In many cases, a family discovers most of the estate passes outside court. That is why understanding what is probate and how it works often saves months of worry.

Next, check your state court’s self-help site. Most publish free forms and plain-English checklists — for example, the California Courts self-help probate portal. Cornell’s Legal Information Institute explains the legal terms without charging anything. Typically, if the estate is small, clearly titled, and nobody is arguing, you may be able to handle it yourself. However, if there is a business, out-of-state land, or a family disagreement, check with your state’s court or a licensed attorney early.

Frequently Asked Questions

How long does probate take?

Most straightforward estates take 9 to 18 months. The creditor claim period alone runs four months in many states. However, small estate affidavits can often finish in 40 to 90 days.

Will my family owe federal estate tax?

Almost certainly not. For 2026, the federal exemption is $15,000,000 per person under the law confirmed in IRS Revenue Procedure 2025-32. As a result, well under 1% of estates owe it — though a handful of states still charge their own estate or inheritance tax.

What happens if there is no will?

The estate is “intestate,” and state law sets the shares. Typically, a surviving spouse and children inherit first, then parents and siblings. Many states use “per stirpes,” which simply means a deceased child’s share drops down to that child’s own children.

Sources & How to Verify

This guide is built from official sources. Always confirm the exact figure for your state:

• IRS — Estate & Gift Tax: irs.gov
• USA.gov — What to do when someone dies: usa.gov/death
• Uniform Law Commission (probate): uniformlaws.org
• Cornell Legal Information Institute: law.cornell.edu
• Your state’s probate court self-help portal and revenue department for the current statute and dollar figures.

Verified August 2026. Estate figures change — if you spot anything outdated, please contact us.

Related Guides

• Probate by State
• Dying Without a Will by State
• Small Estates & Avoiding Probate by State
• Plain-English Estate Glossary

Disclaimer. This page is for general information only and is not legal or tax advice. Wills, probate, and estate-tax rules vary by state, county, and situation, and change over time. We are not a law firm, tax advisor, or financial planner, and we assume no liability for accuracy or completeness. For your specific situation — especially an active probate or a tax deadline — verify with your state’s court, statute, revenue department, or a licensed attorney in your state.