What Is Probate? A State-by-State Guide to the Process (2026)

Probate is the court supervised process of authenticating a will, appointing someone to manage a deceased person's estate, paying debts, and distributing what remains. When someone dies without a valid will, state law, not personal wishes, decides who inherits. This guide explains how probate actually works before sending you to your state's specific page.

Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.

What Is Probate?

Probate is the court-supervised legal process that authenticates a deceased person's will (if one exists), appoints an executor or personal representative with legal authority to act for the estate, identifies and values the decedent's assets, provides a formal window for creditors to make claims, and distributes what remains to the heirs or beneficiaries. Cornell Law School's Legal Information Institute defines it both as the judicial process that proves a will is valid and, more broadly, as the court proceedings that supervise administration of an estate.

Probate exists for real reasons, not just bureaucratic inertia. It protects creditors by creating a formal claims window before assets go to heirs. It produces court-recognized documents, called letters testamentary or letters of administration, that banks, title companies, and other institutions rely on to recognize a new legal owner of accounts, real estate, and other titled property. And it gives families a forum to resolve disputes over a will's validity or who should be appointed to manage the estate.

A common misconception is that probate is always slow and expensive. The American Bar Association's own consumer guidance states plainly that most probate proceedings are neither expensive nor prolonged, calling this out directly against marketing claims made by companies selling living trust products as a way to avoid it. Many assets also pass entirely outside probate regardless of the state, including life insurance and retirement accounts with a named beneficiary and jointly held property with right of survivorship, which is a major reason actual probate burden is often smaller than people assume.

The Probate Process, Step by Step

While exact procedure varies by state, most probate cases move through the same general stages. First, someone, usually the executor named in the will or a close heir if there is no will, files a petition with the probate court and the original will, if one exists. Second, the court formally appoints a personal representative (called an executor if named in a will, or an administrator if appointed for an intestate estate) and issues letters testamentary or letters of administration proving that authority. Third, the personal representative identifies, inventories, and values the estate's assets. Fourth, the estate provides notice to creditors, who have a defined window, often a few months, to file claims; valid debts and taxes get paid from the estate. Fifth, once claims are resolved, the personal representative distributes what remains to the heirs or beneficiaries and files a final accounting with the court to close the estate.

Many states also offer more than one track through this process depending on how straightforward the estate is, covered below under Formal vs. Informal Probate, and a faster path for genuinely small estates, covered under Small Estate and Simplified Probate Options.

Get started with a free Last Will and Testament to make sure your own estate follows your wishes rather than your state's intestate succession order.

How Long Does Probate Take?

There is no single national answer, because it depends heavily on both the state and how complicated the estate is. A straightforward, uncontested estate using a state's simplified or informal track can often close within a few months. A fully formal, court-supervised probate case, especially one involving a dispute, a business interest, or out-of-state property, can take considerably longer. California's own court self-help guide, for example, cites a typical formal probate timeline of 9 to 18 months, but that reflects one procedural track in one state, not a universal norm. Your state's specific page in this guide notes typical timelines and creditor-claim windows where available.

Testate vs. Intestate: What Happens Without a Will

"Testate" means a person died with a valid will in place. "Intestate" means a person died without one, either because they never made a will or because the will they made turned out to be invalid, for example due to improper execution or a successful challenge.

Here is the fact this entire topic turns on: when someone dies intestate, state law, an intestate succession statute, dictates who inherits, in a fixed statutory order, regardless of the deceased's actual wishes, closeness of relationships, verbal promises, or estrangement. A long-term unmarried partner, a stepchild who was never legally adopted, or a close friend who was verbally promised an inheritance typically receives nothing under intestate succession, no matter how strong the real relationship was, because the statute only recognizes specific legal relationships in a fixed order: spouse, biological or adopted children, parents, siblings, and so on.

Watch out: An intestate succession statute cannot be overridden based on what everyone agrees the deceased "would have wanted." Whoever administers an intestate estate is legally bound to follow the statutory order exactly, even if they personally know it does not match the deceased's actual wishes.

One way to make sure your property goes to the people you actually choose, rather than following your state's intestate succession order, is to have a valid will in place. recordinglaw.com's free Last Will and Testament Generator can help you create one, with no account required, then shows your state's specific signing rules.

Intestate Succession: Who Inherits When There's No Will

Nearly every state's intestate succession statute follows the same broad shape, though the exact shares and cutoffs vary significantly by state, covered in detail on each state's own page in this guide.

A surviving spouse and children inherit first, with the split between them depending heavily on whether the children are also the surviving spouse's children or from another relationship, and on whether the state uses community property or common law rules (see the next section). If no spouse or descendants survive, parents inherit. Next come siblings and their descendants (nieces and nephews, inheriting by representation of a deceased sibling's share). After that, more distant relatives, such as grandparents, aunts, uncles, and cousins, inherit under state-specific degree-of-kinship rules. Only as an absolute last resort, when no qualifying relative can be located at all, does an estate escheat to the state treasury; in practice this is rare.

Community Property vs. Common-Law States

This is the structural divide readers most often get wrong. In the 9 community property states, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, spouses already legally co-own most property acquired during the marriage. Each spouse effectively has an existing ownership interest separate from inheritance law. So when one spouse dies, the surviving spouse typically already owns their half of the community property outright, and intestate succession law only determines what happens to the deceased spouse's half of the community property, plus any separate property.

In the other 41 states plus the District of Columbia, all common-law (separate-property) jurisdictions, there is no automatic 50/50 co-ownership during the marriage. Instead, the intestate succession statute directly assigns the surviving spouse a defined share, sometimes the entire estate if there are no children, sometimes a fraction or a first-dollar-amount-plus-fraction split, particularly when there are children from outside the marriage.

A small number of states, including Alaska and Tennessee, are common-law states by default but let spouses opt into a community-property-style arrangement through a specific agreement or trust. These are the exception, not a hidden 10th community-property state.

Small Estate and Simplified Probate Options

Every state offers some form of simplified, faster process for estates below a certain dollar threshold, letting heirs avoid full formal probate. This generally takes one of two forms. A small estate affidavit is a sworn written statement, signed by the heirs, that can often be presented directly to a bank or other institution holding the decedent's assets to have them released, sometimes with no court hearing required at all. A summary administration or simplified probate petition is a lighter-weight, expedited version of a court filing that still involves the court but skips much of what full formal probate requires.

Dollar thresholds vary enormously by state, from roughly $10,000 to $20,000 at the low end to $200,000 or more at the high end, and many states impose a mandatory waiting period after death, commonly 30 to 40 days, before a small estate affidavit can be used. Your state's specific page in this guide gives the current threshold and mechanism. For a state-by-state breakdown, see our guide to small estate affidavit rules by state.

Formal vs. Informal Probate

Many states, largely following the Uniform Probate Code model, offer more than one procedural track through probate depending on how straightforward or contested the estate is. Informal (sometimes called unsupervised) probate is a lighter, mostly paperwork process for uncontested, straightforward estates, with minimal ongoing court involvement. Formal (sometimes called supervised) probate involves active court oversight and hearings before a judge, and is used when there is a dispute, an unusual complication, or when a party specifically requests court supervision.

Roughly 18 states have adopted the Uniform Probate Code in whole or substantial part, though the exact list varies somewhat by source, so treat this as an approximate figure rather than a precise count. Whether your specific state offers a true informal track, and what it requires, is covered on that state's own page.

Estate Tax vs. Inheritance Tax

These two terms get confused constantly, and they are genuinely different. Estate tax is levied on the deceased person's estate itself, before distribution, so the estate pays it, not the individual beneficiaries. Inheritance tax is levied on the beneficiary, on what they personally receive, and the rate commonly depends on how closely related the beneficiary was to the deceased, with spouses and children often exempt or taxed at the lowest rate and distant relatives or unrelated beneficiaries taxed at higher rates.

The federal estate tax applies only to a very small number of the largest estates. For 2026, the basic exclusion amount is $15,000,000 per person, confirmed directly on IRS.gov, up from $13,990,000 in 2025, a substantial jump driven by the One, Big, Beautiful Bill signed into law in July 2025, which permanently reset the exclusion rather than letting the prior, temporarily doubled exemption sunset back down. Married couples can combine exemptions through portability for a combined shelter of up to $30,000,000. For the overwhelming majority of Americans, the federal estate tax simply does not apply.

Separately, roughly a dozen states plus DC levy their own state-level estate tax, with exemption thresholds far lower than the federal figure, commonly in the $1 million to $7 million range depending on the state. And as of 2026, only 5 states levy their own inheritance tax: Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania. Maryland is the only state that levies both a state estate tax and a separate state inheritance tax on the same estate. Iowa repealed its inheritance tax for deaths on or after January 1, 2025, so it no longer belongs on a current list. Your state's page notes whether either tax applies there and at what threshold.

The Executor's Role

The executor, or for an intestate estate, the administrator, is the person legally responsible for managing the estate through probate: gathering and valuing assets, paying valid debts and taxes, and distributing what remains. "Executor" specifically refers to the person named in a valid will to serve this role. "Administrator" refers to a person the court appoints to serve this role when there is no will, typically the closest heir who petitions, though the court retains discretion if multiple heirs have equal priority or a dispute exists. Many states, especially those following the Uniform Probate Code, use "personal representative" as an umbrella term covering both roles. How much the personal representative and the estate's lawyer can be paid depends on the state; our guide to executor and probate attorney fees explains the percentage schedules and the reasonable-fee rule.

The practical difference matters: an executor's actions are guided by the specific instructions in the will, within legal limits. An administrator of an intestate estate has no such discretion. They are legally bound to distribute the estate strictly according to that state's intestate succession statute, even if they personally know the deceased would have wanted something different.

Do You Need a Probate Attorney?

If a will contest or heir dispute is likely, the estate holds a business, the family is blended, or estate or inheritance tax is a real question, get a free case evaluation from a probate attorney who can take the estate from petition to final accounting (attorney advertising). For straightforward, uncontested, modest estates, many states' simplified procedures are specifically designed to be navigable without one.

It is also worth knowing what a will does and does not accomplish. Having a valid will does not eliminate the need for probate after death; a will typically still needs to be authenticated through the probate process. What a valid will does accomplish is making intestate succession avoidable, ensuring your own wishes control distribution instead of a fixed state statute. That is a real, meaningful benefit, distinct from avoiding probate itself. Along with a will, many people also put a healthcare directive and a financial power of attorney in place to cover decisions during incapacity, a related but separate kind of planning; recordinglaw.com's free Advance Directive Generator and Power of Attorney Generator cover those documents.

Probate by State

Select your state for the actual court name, available procedure tracks, small-estate threshold, intestate succession order, and whether an estate or inheritance tax applies.

• Alabama Probate
• Alaska Probate
• Arizona Probate
• Arkansas Probate
• California Probate
• Colorado Probate
• Connecticut Probate
• Delaware Probate
• District of Columbia Probate
• Florida Probate
• Georgia Probate
• Hawaii Probate
• Idaho Probate
• Illinois Probate
• Indiana Probate
• Iowa Probate
• Kansas Probate
• Kentucky Probate
• Louisiana Probate
• Maine Probate
• Maryland Probate
• Massachusetts Probate
• Michigan Probate
• Minnesota Probate
• Mississippi Probate
• Missouri Probate
• Montana Probate
• Nebraska Probate
• Nevada Probate
• New Hampshire Probate
• New Jersey Probate
• New Mexico Probate
• New York Probate
• North Carolina Probate
• North Dakota Probate
• Ohio Probate
• Oklahoma Probate
• Oregon Probate
• Pennsylvania Probate
• Rhode Island Probate
• South Carolina Probate
• South Dakota Probate
• Tennessee Probate
• Texas Probate
• Utah Probate
• Vermont Probate
• Virginia Probate
• Washington Probate
• West Virginia Probate
• Wisconsin Probate
• Wyoming Probate

Disclaimer

This article provides general information about probate and intestate succession in the United States as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in your state, particularly for a contested estate, a business interest, a blended family, or an estate large enough to raise estate or inheritance tax questions. Figures, thresholds, and program details change and vary by state; verify current details directly with the official source before relying on any figure here.

---

Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.

Frequently Asked Questions

What is probate?

Probate is the court-supervised process of authenticating a will, appointing someone to manage a deceased person's estate, paying valid debts, and distributing what remains to heirs or beneficiaries.

Is probate always required?

No. Many assets pass outside probate regardless of state, including life insurance and retirement accounts with a named beneficiary and property held in joint tenancy with right of survivorship. Most states also offer a simplified process for small estates that skips full formal probate.

What happens if you die without a will?

You die 'intestate,' and your state's intestate succession statute decides who inherits, in a fixed legal order, regardless of your actual wishes or relationships that aren't legally recognized, such as an unmarried partner.

How long does probate take?

It varies by state and by how complicated the estate is. A straightforward estate using a simplified track can close in a few months; a fully formal, contested case can take considerably longer, sometimes over a year.

How much does probate cost?

Costs vary by state and estate complexity, driven mainly by court filing fees, required notice publication, and attorney fees if one is hired. Simplified small-estate procedures are generally far cheaper than full formal probate.

What is the difference between estate tax and inheritance tax?

Estate tax is paid by the estate itself before distribution. Inheritance tax is paid by the individual beneficiary on what they personally receive, with the rate often depending on their relationship to the deceased. Only 5 states currently levy an inheritance tax.

Does having a will avoid probate?

No. A will typically still needs to be authenticated through probate. What a will accomplishes is avoiding intestate succession, meaning your own wishes control distribution instead of a fixed state statute.