Probate Process Guide: What to Do After Someone Dies

Step 1: The first 30 days

Immediately after death, three tasks come before probate. First, obtain 10-20 certified death certificates from the county vital records office ($15-$30 each) — you'll need them for banks, life insurance, retirement accounts, and title transfers. Second, locate the original will (safe deposit box, attorney's office, home file) — a photocopy is not enough in most states. Third, notify Social Security (which stops benefits and issues a small death benefit) and any pension administrators.

If there's a surviving spouse and modest joint assets, no probate may be needed at all — joint accounts, joint tenancy real estate, POD/TOD accounts, and beneficiary-designation assets (401(k), IRA, life insurance) all pass outside probate. Take inventory before assuming probate is required.

Step 2: Determine if probate is needed

Full probate is only needed for assets in the decedent's sole name without a beneficiary designation or survivorship title. Every state has a small-estate procedure that bypasses full probate when the estate falls under a threshold: California $208,850 (§13100 affidavit, indexed 2025); Arizona $200,000 personal / $300,000 real (September 2025 update); Oregon $275,000 combined; Texas $75,000 excluding homestead; New York $50,000 personal property (SCPA Article 13 voluntary administration). Most other states run $25,000-$100,000. Below the threshold, the small-estate affidavit processes in weeks for under $1,000 — dramatically cheaper than full probate.

The probate fee calculator flags when your estate qualifies. Above the threshold, formal probate is generally required unless the decedent held everything in a revocable living trust.

Step 3: Open probate and get letters testamentary

The executor named in the will (or, if no will, a court-appointed administrator) files a petition in the county probate court where the decedent was domiciled. The court holds a hearing, admits the will to probate, and issues letters testamentary — the executor's legal authority to act for the estate. This step takes 30-90 days in most states, longer in California and New York due to court backlogs.

The executor's authority begins with the letters, not with the death. Until the letters are issued, only limited actions (funeral, urgent bill payment from the executor's own funds) are proper. In statutory-fee states — California, Florida, Iowa, Missouri, Montana, New York (executor only), Wyoming, Arkansas, Oklahoma, New Jersey (executor only) — the executor's compensation is set by state statute. Elsewhere, it's 2-4% of gross estate as reasonable compensation.

Step 4: Inventory, notice, and creditor claims

The executor's four core duties: inventory (list every asset and its date-of-death value; some states require formal appraisal for real estate), notice (mail to known heirs and creditors; publish in a newspaper of general circulation in the county), creditor claim period (2-12 months by state; California's is 4 months under Cal. Prob. Code §9100), and tax returns (final income tax on Form 1040, and Form 706 estate tax return if the estate exceeds the $15M federal exemption or applicable state threshold).

Creditor claims are typically 3-8% of estate value: mortgages continue to accrue interest, credit cards, medical bills, and any unresolved obligations. Legitimate claims must be paid before distribution; disputed claims can be litigated. In California, missed publication of notice extends the timeline — the 4-month window doesn't start until notice actually runs.

How probate assets are valued (date-of-death valuation and stepped-up basis)

Every asset in the estate is valued as of the date of death, not the date probate opens or closes. For bank and brokerage accounts, that value is usually read straight off the account statement for that date; for real property, closely-held business interests, and other assets without a public market price, the executor typically obtains an independent appraisal — sometimes from a court-appointed or state-certified appraiser — to document the date-of-death fair market value. This is the same valuation that feeds the inventory required in Step 4 above, and it's also the basis for any Form 706 estate tax return.

That same date-of-death value generally becomes the heir's stepped-up cost basis for capital-gains purposes — a rule the IRS applies to most property acquired from a decedent: when the heir eventually sells the asset, gain or loss is measured against its value at death, not what the decedent originally paid for it. For an asset that gained significant value during the decedent's lifetime — an inherited home bought decades earlier at a much lower price, for example — that step-up can eliminate most of the capital-gains tax the decedent would otherwise have owed on the appreciation. Keep the appraisal and any Form 706 filing with the estate's records; they document the stepped-up basis if it's ever questioned later.

Step 5: Distribution and closing

After creditor claims are resolved and taxes are paid, the executor distributes remaining assets according to the will (or state intestacy law if there's no will). The court reviews the final accounting, approves distributions, and discharges the executor.

Uncontested probate closes in 6-12 months in most states, 9-18 months with real estate, 12-24 months in California and New York, and 3-6 months in Texas independent administration. Contested probate — will contests, creditor litigation, fiduciary disputes — stretches to 2-5 years with costs escalating 5-10× the uncontested baseline.

Is there a maximum time to complete probate? In most states, no single statutory deadline forces the whole case closed by a fixed date — probate ends when the required steps (creditor period, tax filings, final accounting, distribution) are actually finished, however long that takes. That doesn't mean there's no recourse against delay: if an executor sits on the case, an heir or beneficiary can generally file a petition to compel an accounting or distribution, and in serious cases petition the court to remove a stalling executor for failing to act. Separately, some states do impose hard deadlines on specific steps within probate rather than the case as a whole — the creditor-claim window (Step 4) is one example — and a handful of states set an outer limit for filing the final accounting or closing the estate. Those deadlines are state-specific, so confirm the exact rule for the decedent's state rather than assuming either a fixed maximum or no limit at all.

Step 6: If probate is dragging — accelerate what you can

If you're stuck in a long probate, six levers can help. First, apply for a small-estate procedure if the estate qualifies (most states let you convert if you discover eligibility late). Second, publish creditor notice immediately if it hasn't run — the statutory window doesn't start until notice actually runs. Third, use independent administration where available (Texas Est. Code §401.001; several other states have similar provisions) to skip court oversight of routine acts. Fourth, request UPC informal probate in a UPC state (Utah, Colorado, Arizona, Minnesota, Idaho, others). Fifth, consider moving venue to a rural county if the decedent had residence flexibility. Sixth, hire a probate paralegal or attorney with local court expertise — knowing when to file specific motions can shave months. See the probate timeline calculator for state-specific ranges.

Step 7: Avoid probate for your own estate

The single most effective probate-avoidance tool is a revocable living trust set up during life. Assets in the trust bypass probate entirely at death — no attorney fee, no executor commission, no court proceeding, no publication. Cost: $1,500-$5,000 attorney or $499-$599 online (Trust & Will). Other probate-avoidance tools: transfer-on-death deeds for real estate (~30 states); pay-on-death designations for bank accounts; joint tenancy with rights of survivorship; beneficiary designations on 401(k), IRA, and life insurance (these override wills and trusts). A living trust is the most comprehensive because it covers assets these individual tools miss.

For any estate above the state's small-estate threshold, the trust math wins — see the probate vs trust comparison and the living trust cost calculator. The savings for a $750,000 California estate are typically $28,000-$35,000 plus 12+ months of settlement time.

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