What is probate, and how does it work?

What is probate? The definition and the words that go with it

California's courts define probate as the legal process you must follow to transfer or inherit property after the person who owned it has died. Everything the person legally owned is their estate. Depending on the amount and type of property, you may or may not need to go to court; going to court is what people call going through probate.

• Probating a will. A will can't be used to prove a transfer of property until a court validates it. That step is called probating the will, or admitting it to probate, and it is commonly followed by estate administration.Texas State Law Library
• Administration. The process in which the executor or personal representative collects the person's assets, pays debts and claims, and distributes what is left under the will or, without a will, under the state's intestacy rules.Texas State Law Library
• Personal representative, executor, administrator. The personal representative is responsible for the estate in probate: they collect the property, pay the bills and distribute what remains to the heirs or beneficiaries. One named in a will is usually called the executor; if there is no will, or the executor can't serve, the court may approve an administrator to do the same job.California Courts · Texas State Law Library
• Letters. The court document that gives the representative authority to act: letters testamentary for an executor, letters of administration for an administrator.Texas State Law Library
• Heirs and beneficiaries. An heir has a right under state law to inherit, which means the closest family members. A beneficiary is a person or organization entitled to receive something through a will, trust or life insurance policy.Texas State Law Library
• Probate court. In California, the probate division of the superior court handles these cases, along with guardianships and conservatorships. In New York, a named executor files the will with the Surrogate's Court, for example to settle a small estate.California Courts · N.Y. SCPA § 1303

Probate with a will and without a will

A will doesn't avoid probate, and having no will doesn't either. California's courts say an estate may need probate even if there was a will, and the Texas State Law Library says dying without a will doesn't mean probate isn't required. The will decides who inherits the property that passes under it; without one, state law does.

• If there is a will. Whoever has the original must hand it to the court: in California within 30 days of learning of the death, with a copy to the executor named in it; in Texas on receiving notice of the death; and in Florida within 10 days. In Texas, a will generally can't be admitted to probate after the fourth anniversary of the death, unless the applicant shows they were not in default. In Texas, once a will is filed for probate, it becomes a public record.Cal. Prob. Code § 8200 · Tex. Est. Code §§ 252.201, 256.003 · Fla. Stat. § 732.901 · Texas State Law Library
• If there is no will. The person died intestate, and the state's intestacy laws, also called intestate succession, decide who inherits. Those laws don't apply to nonprobate property, which passes directly to the named beneficiaries.California Courts · Texas State Law Library
• Property the will doesn't mention. Many wills say who gets anything left over, in a residuary clause. In Texas, if there is no such clause, the leftover property passes to the heirs as if there was no will.Texas State Law Library

Who inherits without a will depends on the state and the family. Some examples, for property that goes through probate:

• California. The surviving spouse gets the deceased spouse's half of the community property. Of the separate property, the spouse gets all, one-half or one-third, depending on whether the person left children, parents, brothers or sisters, or their descendants.Cal. Prob. Code § 6401
• Texas. The surviving spouse and children will usually inherit all the probate assets. Texas is a community property state, with different rules for community and separate property.Texas State Law Library
• Florida. The surviving spouse inherits the whole estate if the person left no descendants, or if all of them are also the spouse's descendants and the spouse has no others. Otherwise the spouse inherits one-half, and the rest goes to the descendants.Fla. Stat. §§ 732.102, 732.103
• New York. With a spouse and descendants, such as children, the spouse gets $50,000 and one-half of the rest, and the descendants share the balance. A spouse with no descendants inherits everything.N.Y. Est. Powers & Trusts Law § 4-1.1

What an executor or personal representative does

If the estate needs probate, a judge appoints a personal representative, often the person named in the will. In California, if that person can't act or there is no will, the order of priority is the surviving spouse or domestic partner, then a child, a grandchild, a parent and a sibling. Two or more people can serve together, but they must always act together. As the power of attorney guide explains, an agent's authority ends when the principal dies; the estate is then handled by the personal representative.

California's courts describe a formal probate case in these steps:

1. 1Open the case. File a Petition for Probate in the county where the person lived, and pay the filing fee or ask for a fee waiver. Notice of the hearing goes to the family and anyone who may inherit, mailed by another adult who isn't a party, and a notice is published in a newspaper. At the hearing, the judge appoints the personal representative.
2. 2Take inventory. Gather the assets and file an Inventory and Appraisal. A probate referee usually values the non-cash assets.
3. 3Notify creditors and pay debts. Give formal notice to creditors and, if there is money to pay them, pay the estate's debts from the estate.
4. 4Handle taxes. A final personal income tax return is prepared for the person who died, and the estate may need its own return if it earned money, such as interest or profit on a sale.
5. 5Report to the court. Courts usually require a report a year after the personal representative is appointed, and can give more time if it's needed.
6. 6Close the estate. File a final report, a final account and a petition for final distribution. A judge approves the distribution at a hearing. The final account isn't needed if everyone entitled to a share signs a waiver or a receipt.

The Texas State Law Library's list of an executor's tasks also includes notifying heirs and beneficiaries, managing bank accounts, settling insurance, negotiating with creditors, keeping estate property up, keeping track of expenses and preparing accounting reports.

• A fiduciary. In Florida, a personal representative is a fiduciary held to the standards of care that apply to trustees, and must settle and distribute the estate as quickly and efficiently as the estate's best interests allow.Fla. Stat. § 733.602
• Paid from the estate. A personal representative can be paid for the work, at rates set out in each state's law. See the state-by-state comparison.Cal. Prob. Code § 10800 · Tex. Est. Code § 352.002 · Fla. Stat. § 733.617 · N.Y. SCPA § 2307
• Who can't serve in Texas. Typically disqualified: incapacitated persons, people with a felony conviction, out-of-state residents without a Texas agent or Texas attorney, and people the court finds unsuitable.Texas State Law Library

Assets that usually skip probate

Nonprobate property passes directly to the beneficiaries according to a contract or deed, without court approval. Common examples:

• Named beneficiaries. Life insurance, retirement accounts such as 401(k)s and IRAs, pensions, annuities, and payable-on-death (POD) bank accounts go to the beneficiary the owner named.California Courts · Texas State Law Library
• Joint ownership with survivorship. In California, property owned in joint tenancy goes to the surviving owner. In Texas, the surviving owner inherits automatically only if the owners signed a survivorship agreement, and joint bank accounts don't automatically come with one.California Courts · Texas State Law Library
• Transfer on death. Property with a transfer-on-death designation, such as a Texas transfer-on-death deed for real estate, goes to the person named.California Courts · Texas State Law Library
• Living trusts. Assets held in a living trust pass directly to the beneficiaries named in the trust document, bypassing probate.Texas State Law Library · California Courts
• Community property for a spouse. In California, a surviving spouse or domestic partner entitled to all the property can file a spousal property petition, which is faster and less complicated than opening probate.California Courts
• Government benefits. Most government benefits, like Social Security survivor benefits, can be collected without going to probate court.California Courts

Small estates: shortcuts that avoid full probate

All four states have a faster, simpler way to transfer a small estate. Each state sets its own limit and leaves some property out of the count, such as nonprobate assets or a homestead:

• California: small estate affidavit. If the person died on or after April 1, 2025, the property counted is worth $208,850 or less, and 40 days have passed, personal property can be collected with an affidavit, without opening probate. Left out of the count: cars, boats and mobile homes, real property outside California, property in a living trust or joint tenancy, property passing to a surviving spouse or domestic partner, and assets that pass directly to beneficiaries. The person's debts are not subtracted. A separate petition can transfer the person's main home in California if it is worth no more than $750,000. The limits are updated every 3 years, next on April 1, 2028.California Courts · Cal. Prob. Code §§ 13050, 13100 · Judicial Council form DE-300
• Texas: small estate affidavit and muniment of title. A small estate affidavit can be used when there is no will, no one has applied for administration, assets are $75,000 or less not counting the homestead or exempt property, there is enough to pay the debts, there is no real property except a homestead, and all the heirs agree. 30 days must have passed since the death, and the judge must approve the affidavit. With a will and no debts except those secured by real estate, the will can be probated as a muniment of title, with no administration and no executor.Texas State Law Library · Tex. Est. Code § 205.001
• Florida: summary administration. Available when the will doesn't require formal administration and the estate subject to administration in Florida, less exempt property, is worth $150,000 or less, or the person has been dead for more than 2 years. The limit was raised from $75,000 by a 2026 law that took effect on July 1, 2026. No administration at all is needed for an estate of only exempt property and a small amount of other personal property, for example up to $20,000 (from July 1, 2026) plus funeral and last-illness costs when there is no will and the person died more than a year ago.Fla. Stat. §§ 735.201, 735.301, 735.304 · Florida House of Representatives
• New York: voluntary administration. A small estate is personal property with a gross value of $50,000 or less, not counting certain property the law requires to be set off. A voluntary administrator settles it without formal court administration. If there is no will, the surviving adult spouse has the first right to serve, then an adult child or grandchild, parent, brother or sister, niece or nephew, or aunt or uncle. If there is a will, the named executor has the first right, after filing the will with the Surrogate's Court.N.Y. SCPA §§ 1301, 1303

Probate rules in California, Texas, Florida and New York

These are the statutes' basic rules, and each has exceptions. In Texas, for example, a will can set the executor's fee. Other states set their own rules: start with your state's probate code or your state court's self-help website.

How long probate takes and what it costs

Few official sources put a number on it. California's courts do: a formal probate case typically takes 9 to 18 months and can sometimes take even longer. A formal case has three main parts: opening the case, administering the estate and closing it.

• Court costs. In California, the fee to open probate is typically $435, or you can apply for a fee waiver. With the newspaper notice, a probate referee's appraisal and other expenses, the costs of administration are often well over $1,000 and can be much more. The personal representative usually pays upfront and is paid back from the estate.California Courts
• Fees for the representative and the lawyer. California sets the personal representative's fee and the lawyer's fee as a percentage of the estate, usually paid at the end of the case. Texas caps the executor's commission at 5%, Florida presumes a percentage commission reasonable but has no mandatory statutory attorney fee, and New York sets commission rates by statute. See the comparison.California Courts · Cal. Prob. Code §§ 10800, 10810 · Tex. Est. Code § 352.002 · Fla. Stat. §§ 733.617, 733.6171 · N.Y. SCPA § 2307
• Waiting periods for the shortcuts. A small estate affidavit can be used once 40 days have passed since the death in California, and 30 days in Texas, where a judge must also approve it.Cal. Prob. Code § 13100 · Tex. Est. Code § 205.001

Creditors, debts and taxes

Debts don't go away at death; they are paid from the estate. The Federal Trade Commission says family members usually don't have to pay a deceased relative's debts from their own money, and if the estate can't cover a debt, it usually goes unpaid. You may be personally responsible if you:

• Cosigned the debt, such as a car loan.
• Are the spouse and live in a community property state, such as California.
• Are the spouse and live in a state that requires you to pay certain debts, like some health care expenses.
• Were legally responsible for settling the estate and didn't follow your state's probate laws.

The executor or personal representative settles the debts from the estate. A debt collector may discuss the debt only with certain people, such as the spouse, the executor or the personal representative; others can be contacted only to find out who represents the estate. Creditors who wait too long can lose their claims: see the deadlines by state.

• The final income tax return. The person's final federal income tax return is prepared the same way as if they were alive, reporting all income up to the date of death. If a refund is due, it is claimed with Form 1310.Internal Revenue Service
• The estate's income. The fiduciary of an estate files Form 1041 to report the estate's own income, deductions, gains and losses.Internal Revenue Service
• Federal estate tax. Most relatively simple estates don't need an estate tax return. A return is required only if the gross estate, plus certain lifetime gifts, exceeds the filing threshold for the year of death: $15,000,000 for 2026 and $13,990,000 for 2025. It is due nine months after the death, and an extension of up to six months can be requested.Internal Revenue Service
• A spouse's unused exemption. If the person was survived by a spouse, the estate can pass the unused exemption to the spouse, but only on a timely filed estate tax return.Internal Revenue Service
• New York estate tax. New York has its own estate tax. A resident's estate must file a New York return if the federal gross estate plus certain gifts exceeds the basic exclusion amount: $7,350,000 for deaths in 2026.New York State Department of Taxation and Finance
• Medicaid in Texas. If the person received Medicaid benefits over $3,000, Texas may have a claim against the estate. In many cases the state won't ask for any money, for example when there is a surviving spouse or a child under 21.Texas State Law Library

Do I need a probate attorney?

It depends on the state, the procedure and the court. In Texas, estate administration requires an attorney, because the executor represents the beneficiaries and creditors, not only themselves; some informal methods may not, and the rules can differ from court to court. In California, the personal representative can hire a lawyer if they want, or pay for a consultation to answer a question while continuing on their own, and the lawyer is generally paid at the end of the case from the estate. In Florida, a lawyer who charges by the statutory fee schedule must tell the personal representative in writing that there is no mandatory statutory attorney fee and that the fee can be negotiated.

Consider talking to a lawyer or a legal aid office if the family disagrees about the will or who should serve, if the estate may not cover its debts, if there is real estate or a business, or if someone says you must pay a relative's debts. The FTC suggests asking a lawyer whether you are legally required to pay a deceased person's debts, and says you may qualify for free legal aid depending on your income.

Common questions

Official sources

1. California Courts Self-Help Guide: Guide to property after someone dies (what probate is, who handles it, legal terms) courts.ca.gov
2. California Courts Self-Help Guide: Check if you can use a simple process to transfer property (small estate limits) courts.ca.gov
3. California Courts Self-Help Guide: If you need formal probate (steps, time, fees and costs) courts.ca.gov
4. Judicial Council of California, form DE-300: Maximum values for small estate set-aside and disposition without administration (PDF) courts.ca.gov
5. California Probate Code § 6401: surviving spouse's intestate share leginfo.legislature.ca.gov
6. California Probate Code § 8200: delivering a will to the court within 30 days leginfo.legislature.ca.gov
7. California Probate Code § 9100: time for creditors to file claims leginfo.legislature.ca.gov
8. California Probate Code § 10800: personal representative's compensation leginfo.legislature.ca.gov
9. California Probate Code § 10810: compensation of the personal representative's attorney leginfo.legislature.ca.gov
10. California Probate Code § 13050: property left out of a small estate's value leginfo.legislature.ca.gov
11. California Probate Code § 13100: collecting property without probate (small estate) leginfo.legislature.ca.gov
12. Texas State Law Library: Probate Law, general information (what probate is, do I need an attorney, terms) sll.texas.gov
13. Texas State Law Library: Before Probate (bank accounts, Medicaid claims) sll.texas.gov
14. Texas State Law Library: Probating a Will (time limit, public record, property not in the will) sll.texas.gov
15. Texas State Law Library: When There Is No Will sll.texas.gov
16. Texas State Law Library: Estate Executors (duties, who can serve, pay) sll.texas.gov
17. Texas State Law Library: Informal Methods (small estate affidavit, muniment of title) sll.texas.gov
18. Texas State Law Library: Nonprobate Property sll.texas.gov
19. Texas Estates Code, Chapter 205: small estate affidavit (§ 205.001) legis.texas.gov
20. Texas Estates Code, Chapter 252: delivering a will to the court clerk (§ 252.201) legis.texas.gov
21. Texas Estates Code, Chapter 256: period for admitting a will to probate (§ 256.003) legis.texas.gov
22. Texas Estates Code, Chapter 308: notice to creditors (§ 308.051) legis.texas.gov
23. Texas Estates Code, Chapter 352: compensation of personal representatives (§ 352.002) legis.texas.gov
24. Florida Statutes § 731.005 (2026): Florida Probate Code (short title) flsenate.gov
25. Florida Statutes § 732.102 (2026): spouse's share of an intestate estate flsenate.gov
26. Florida Statutes § 732.103 (2026): share of other heirs flsenate.gov
27. Florida Statutes § 732.901 (2026): production of wills flsenate.gov
28. Florida Statutes § 733.602 (2026): personal representative's general duties flsenate.gov
29. Florida Statutes § 733.617 (2026): compensation of the personal representative flsenate.gov
30. Florida Statutes § 733.6171 (2026): compensation of the personal representative's attorney flsenate.gov
31. Florida Statutes § 733.702 (2026): limitations on presenting claims flsenate.gov
32. Florida Statutes § 733.710 (2026): two-year limit on claims against estates flsenate.gov
33. Florida Statutes § 735.201 (2026): summary administration flsenate.gov
34. Florida Statutes § 735.301 (2026): disposition without administration flsenate.gov
35. Florida Statutes § 735.304 (2026): disposition without administration of small intestate estates flsenate.gov
36. Florida House of Representatives: final bill analysis, CS/HB 1337 (2026), small estates (PDF) flsenate.gov
37. New York Surrogate's Court Procedure Act § 1301: small estate definition nysenate.gov
38. New York Surrogate's Court Procedure Act § 1303: who may become a voluntary administrator nysenate.gov
39. New York Surrogate's Court Procedure Act § 1802: effect of failing to present a claim nysenate.gov
40. New York Surrogate's Court Procedure Act § 2307: commissions of fiduciaries nysenate.gov
41. New York Estates, Powers and Trusts Law § 4-1.1: descent and distribution of an intestate estate nysenate.gov
42. New York State Department of Taxation and Finance: Estate tax (2026 basic exclusion amount) tax.ny.gov
43. IRS: Estate tax (filing threshold by year of death) irs.gov
44. IRS: Frequently asked questions on estate taxes (due date and extension) irs.gov
45. IRS: File the final income tax returns of a deceased person irs.gov
46. IRS: About Form 1041, U.S. Income Tax Return for Estates and Trusts irs.gov
47. Federal Trade Commission: Debts and deceased relatives ftc.gov

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