What Is Probate? Steps, Timeline, Cost and How to Avoid It
Probate is the court process that settles a person's affairs after they die: a court confirms the will (if there is one), puts a personal representative in charge, and that person collects the property, pays the debts and hands what is left to the heirs. Generally, only property in the person's own name with no beneficiary goes through it. California's courts say a formal probate case typically takes 9 to 18 months, and in states that set fees by law, such as California, the executor and the lawyer are each paid a percentage of the estate. Many families can skip probate, or use a shorter process, with planning or a small estate procedure.
Probate in Short
- What it is: the court process for distributing a dead person's assets, paying their debts and settling their financial affairs.
- What goes through it: property titled in the person's name alone, with no beneficiary, no co-owner with survivorship rights and no trust.
- Who runs it: a personal representative, called the executor when a will names them and the administrator when there is no will.
- How long: about 9 to 18 months for a formal case in California. Creditors alone get 4 months after the published notice in Arizona and 3 months in Florida.
- What it costs: court and publication fees (California's filing fee is typically $435), plus fees for the personal representative and lawyer. In California a $500,000 estate means $26,000 in statutory fees for the two together.
- How to avoid it: beneficiary designations, joint ownership with survivorship, a transfer on death deed, a living trust, or a small estate procedure when the estate is under your state's limit.
What Probate Is
The California courts define probate as "the court process for distributing a dead person's assets, paying debts owed by the dead person, and settling the financial affairs of people when they die." Every state has its own probate law, and the court that handles it is usually called the probate court (some states give it another name). The terms are much the same everywhere:
- Decedent: the person who died.
- Estate: all the real and personal property the person owned at death.
- Personal representative: the person the court appoints to manage the estate. An executor is named in a will; an administrator is appointed when there is no will, usually the spouse, domestic partner or a close relative.
- Testate and intestate: dying with a will and without one. With no will, state law (intestate succession) decides who inherits.
- Beneficiary and heir: a beneficiary inherits under a will; an heir is a family member who inherits from the decedent.
A will does not skip probate. It tells the court who gets the property and whom you want as executor, but in most cases it has to be probated to work. Arizona's law, for example, says a will must be declared valid by the registrar or the court "to be effective to prove the transfer of any property or to nominate an executor." If you are still writing yours, see how to make a will.
What Goes Through Probate and What Doesn't
Probate only covers property that has no other way to pass. A lot of what people own already names who gets it, and that property goes straight to that person.
| Usually outside probate | Usually goes through probate |
|---|---|
| Life insurance, bank and retirement accounts, pensions and annuities with a named beneficiary | Accounts in the person's name alone with no beneficiary (or with the estate as beneficiary) |
| Property owned in joint tenancy or a joint account with right of survivorship (the surviving owner gets it) | Real estate titled in the person's name alone, with no transfer on death deed |
| Real estate with a transfer on death deed | Cars, valuables and other belongings with no title or beneficiary arrangement |
| Property held in a living trust | Property a will leaves to someone, if it has no beneficiary of its own |
| Most government benefits, such as Social Security survivor benefits | Anything else titled in the person's name alone |
State law backs this up. In the Uniform Probate Code version Arizona uses, a payable-on-death or beneficiary provision in an insurance policy, account, pension plan, individual retirement plan, trust or deed "is nontestamentary," which means it works outside the will and outside probate. A beneficiary form overrides your will for that account, so keep them up to date.
The Probate Process Step by Step
California's courts describe formal probate as "3 main parts: opening a case, administering the estate, and closing the estate." Other states use the same outline with their own forms and deadlines.
- Find the will and file it. Whoever holds the original will must turn it in. In Florida the custodian must deposit it with the court clerk within 10 days after learning of the death.
- Open the case. File a petition in the county where the person lived (or, for someone who lived out of state, a county where they owned property). In California this is the Petition for Probate (form DE-111), and the filing fee is typically $435, which can be paid back from the estate later. You can ask for a fee waiver if you can't afford it.
- Give notice. Family members and anyone who may inherit must get notice of the hearing, and in California the notice must also be published in a local newspaper.
- Get appointed. At the hearing the judge decides who will be the personal representative.
- Take inventory. List everything the decedent owned and its value at death. California uses the Inventory and Appraisal (form DE-160), and a probate referee usually values non-cash assets. Arizona gives the personal representative 90 days after appointment to prepare the inventory.
- Notify creditors and pay debts. Publish and send a notice to creditors, review the claims that come in, and pay valid ones from estate money.
- File tax returns. A final personal income tax return for the decedent, and an estate income tax return if the estate earns enough (see debts and tax returns).
- Report to the court. California courts usually require a report a year after the personal representative is appointed.
- Distribute and close. File a final report, account and petition for distribution; the judge approves it at a hearing, the property goes to the heirs, and the personal representative is discharged. In California, the final account can be skipped if everyone entitled to a share signs a waiver or a receipt.
Informal, Formal and Supervised Probate
States that follow the Uniform Probate Code offer more than one track. Arizona's version shows how it works:
- Informal probate: an application to the court's registrar, with no hearing. The surviving spouse, an adult child, parent, brother or sister, another heir or the person the will names can apply; any creditor can apply 45 days after the death. The registrar can appoint the personal representative once at least 120 hours have passed since the death (30 days if the decedent lived out of state, with some exceptions). Arizona's law says the powers and duties of the office are "fully established" by informal appointment.
- Formal probate: "litigation to determine whether a decedent left a valid will," decided by a judge after notice and a hearing. It is also how someone contests a will or asks the court to set aside an informal probate.
- Supervised administration: the court supervises the whole estate. Any interested person or the personal representative can ask for it, and a will can direct it.
Other states use different names. California's courts describe a single formal process with hearings; Florida offers formal administration and summary administration for smaller estates (more below).
How Long Probate Takes
The California courts say formal probate "typically takes 9 to 18 months and can sometimes take even longer." The fixed parts of the clock are the waiting periods in each state's law:
| Deadline | Arizona (Uniform Probate Code state) | Florida |
|---|---|---|
| Newspaper notice to creditors | Once a week for 3 weeks | Once a week for 2 weeks |
| Time for creditors to file claims | 4 months after first publication, or 60 days after a mailed notice if later | 3 months after first publication, or 30 days after service on a known creditor if later |
| Outer limit for claims | Generally 2 years after death, plus any notice period still running | 2 years after death, unless a claim was filed in time |
| Inventory | Within 90 days after appointment | Not covered in this table |
| Earliest close | Sworn closing statement no earlier than 4 months after appointment | After administration is complete, the personal representative is discharged |
| Deadline to open probate | Generally 2 years after death | Not covered in this table |
Extra work stretches the clock. Florida's fee law lists the kinds of work that go beyond ordinary administration, such as selling property, litigation, tax proceedings and carrying on the decedent's business. If an estate stalls, an interested person can push it along. In Arizona, anyone interested can petition the court to settle the estate one year after the first personal representative was appointed, once the time for presenting creditor claims has ended.
How Much Probate Costs
Probate costs come in two kinds: court and administration costs, and fees for the personal representative and the lawyer. The California courts say costs of administration "are often well over $1,000.00 and can be much more," covering court filing fees, newspaper notices and appraisals. The bigger cost is the fees, and states set them in different ways:
- Percentage set by law (California): the personal representative and the attorney each receive 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million and 0.5% of the next $15 million. The value used is the gross value of the estate, without subtracting the mortgage or other debts.
- Presumed reasonable schedule (Florida): the personal representative's commission is presumed reasonable at 3% of the first $1 million, 2.5% above $1 million up to $5 million, 2% above $5 million up to $10 million, and 1.5% above that. The attorney's fee is presumed reasonable at $1,500 for an estate of $40,000 or less, plus $750 more up to $70,000 and $750 more up to $100,000, then 3% of the next $900,000, with lower rates above $1 million. Florida law says there is no mandatory statutory attorney fee and the fee "is subject to negotiation."
- "Reasonable compensation" (Uniform Probate Code states such as Arizona): the personal representative "is entitled to reasonable compensation," with no percentage in the statute.
Here is what the California and Florida schedules give for the same estate, counting both the personal representative and the lawyer, before any extra fees for unusual work such as selling property or litigation:
| Estate value | California (statutory) | Florida (presumed reasonable) |
|---|---|---|
| $250,000 | $16,000 | $15,000 |
| $500,000 | $26,000 | $30,000 |
| $1,000,000 | $46,000 | $60,000 |
A personal representative can turn down all or part of the fee. In California, fees are usually not paid until the end of the case, but the personal representative often has to pay court costs up front and get paid back from the estate.
Debts and Tax Returns in Probate
The estate pays the decedent's debts before the heirs get anything. If there isn't enough to pay everyone, the law sets the order. In Arizona it is: costs of administration, reasonable funeral expenses, debts and taxes with priority under federal law, medical and hospital costs of the last illness, debts and taxes with priority under state law, then all other claims.
The personal representative also handles the tax returns:
- Final income tax return: a Form 1040 or 1040-SR for the year of death, plus possibly earlier years the decedent did not file, according to the IRS.
- Estate income tax return: if the estate has more than $600 in gross income in a year, the personal representative must file Form 1041. For a calendar-year estate it is due April 15 of the following year; for a fiscal-year estate, by the 15th day of the 4th month after the year ends. Form 7004 gives an automatic 5-month extension.
- Notice to the IRS: Form 56 tells the IRS that a fiduciary relationship, such as being personal representative, has started or ended.
- Federal estate tax: only large estates file. For deaths in 2026 a Form 706 is required when the gross estate, plus adjusted taxable gifts, is over $15,000,000. See estate planning basics and inheritance tax for state taxes.
How to Avoid Probate
You can't avoid probate for property that has no way to pass except through it, but you can make sure little or nothing ends up in that group:
- Name beneficiaries (see beneficiary designations) on retirement accounts, life insurance and annuities, and add payable-on-death or transfer-on-death designations to bank and brokerage accounts.
- Use a transfer on death deed for your home in states that allow one; see transfer on death deeds by state. A few states use an enhanced life estate (lady bird deed) instead.
- Own property jointly with survivorship, so the surviving owner gets it.
- Set up a revocable living trust and retitle property into it. It costs more up front and only covers what you put in; compare the two in living trust vs will.
- Use a small estate procedure if what is left is under your state's limit. In California, a small estate affidavit can be used once 40 days have passed since the death. Florida's summary administration covers estates of up to $150,000, not counting property exempt from creditors, or any estate where the decedent has been dead for more than 2 years. Limits for every state are in our small estate affidavit guide.
Planning to skip probate does not replace a will. You still need one to name a guardian for minor children and to catch anything left outside your other arrangements. Estate planning basics covers the full set of documents.
Sources & Methodology
- Definitions, the formal probate process, the 9 to 18 month estimate, the $435 filing fee, costs of administration and property that passes outside probate: Judicial Branch of California self-help guide, If you need formal probate, Check if you can use a simple process, Common words in probate cases and Inventory and estimate property value.
- California fees: Probate Code 10800 and 10810, read on the Legislature's site on October 13, 2026 (the site refused our automated request with HTTP 403 on November 7, 2026; the sections were last amended in 2001).
- Uniform Probate Code rules: Arizona Revised Statutes 14-3102, 14-3108, 14-3201, 14-3301, 14-3307, 14-3401, 14-3502, 14-3706, 14-3719, 14-3801, 14-3803, 14-3805, 14-3931, 14-3933 and 14-6101. Arizona has its own changes to the model code (for example, a 2-year limit to open probate), so other UPC states can differ.
- Florida: Statutes 732.901, 733.2121, 733.617, 733.6171, 733.702, 733.710, 733.901 and 735.201.
- Taxes: IRS final income tax returns of a deceased person, filing the estate income tax return, About Form 56 and Estate tax.
- The fee comparison table is our arithmetic from the California and Florida schedules. No government agency publishes a national average probate cost, so we don't quote one.
- All sources retrieved November 7, 2026 unless noted.
FAQ
What does probate mean?
Probate is the court process that proves a will (if there is one), appoints someone to manage the estate, pays the decedent's debts and gives the remaining property to the people entitled to it.
What is probate court?
It is the court, or division of a court, that handles the estates of people who have died. You usually file in the county where the person lived.
Does every estate have to go through probate?
No. Property with a named beneficiary, joint owner with survivorship, transfer on death deed or living trust passes outside probate, and small estates under the state limit can use a simpler process.
How much does a probate lawyer cost?
It depends on the state. California sets the lawyer's fee by law as a percentage of the estate, for example $13,000 for a $500,000 estate. Florida has a presumed reasonable schedule that can be negotiated. States such as Arizona only say the fee must be reasonable.
Can I do probate without a lawyer?
Often, yes. California's courts say the personal representative can hire a lawyer if they want, and can pay for a consultation on a single question instead. Ask your local probate court what it requires.
This page is for educational purposes only and is not legal or tax advice. Probate rules, deadlines and fees differ by state and change over time; check your state's statutes and court, or talk to a probate attorney, before you act.
