Probate, and whether it applies to you

Why it exists

When someone is gone, their name still sits on things: a deed, a bank account, a car title. Those names have to change, and the law will not simply take a family's word for who should get what. Probate is the state's answer to two questions it cannot leave open. Who is authorized to act for someone who can no longer act? And who gets paid before anything is given away?

A court appoints a person, gives them documented authority, requires them to account for everything, and gives creditors a fixed window to come forward. Once you see it as a system for preventing theft and unpaid debt, the paperwork stops feeling arbitrary. It is the price of the certainty that lets a bank hand over money.

How it actually works

The court confirms the will if there is one, or applies the state's own inheritance rules if there is not. It appoints someone to run the estate, called the executor when a will names them, and the administrator when the court chooses them. The court then issues the document that makes the whole thing move: letters testamentary, or letters of administration. This single sheet of paper is what a bank, an insurer, or a county recorder will demand before they speak to you at all. Order several certified copies when you get them.

From there the shape is always the same. The estate is inventoried and valued. Creditors are formally notified, and a claim window opens, during which anyone owed money must come forward or lose the right to. Valid debts and final taxes are paid, in the order the state sets. Only then is what remains distributed, and the estate closed with a final accounting.

The clock is mostly other people's. Six to eighteen months is typical for a full probate, and most of that is waiting. It is rarely difficult. It is long.

Do you even need it. This is the question that saves the most time and money, and almost nobody asks it first. A great deal of property never touches probate. Anything with a named beneficiary goes straight to that person: life insurance, a 401k, an IRA. Jointly owned property with right of survivorship passes to the surviving owner. Accounts marked payable on death go to whoever is named. Anything titled into a living trust is governed by the trust, not the court. So strike all of that from your list.

Probate is for what is left: property that sat in your person's name alone, with no beneficiary attached. In most families that is a house, or a solo bank account, or nothing at all.

Then ask the second question. Is what remains under your state's small estate threshold? Every state sets one, and beneath it you may use a small estate affidavit or a simplified procedure, which is a form rather than a court case. The thresholds are not close to each other, and the fine print matters more than the number.

New York's is 50,000 dollars. California's is 208,850 dollars, revised every three years. Texas sets 75,000 dollars but excludes the homestead and other exempt property from that count, and the route is only open when there is no will. Florida sets 75,000 dollars less property exempt from creditors, and separately allows a route with no cap at all once more than two years have passed. Your state's rule is a statute, not a rule of thumb.

What to do

1. 1Find the will, if there is one. Do not mark it, unstaple it, or tidy it. Courts want the original.
2. 2Order certified death certificates, several of them.
3. 3List every asset by how it is titled: joint, beneficiary designated, trust held, or sole name.
4. 4Set aside everything that passes on its own. What remains is the probate estate.
5. 5Compare that remainder against your state's small estate threshold, reading the statute rather than a summary.
6. 6If you are above it, file the petition with the probate court in the county where your person lived.
7. 7Receive your letters. Order certified copies.
8. 8Open an estate bank account, and run every dollar through it.
9. 9Notify creditors and let the claim window run its full course.
10. 10Pay valid debts and final taxes.
11. 11Distribute what remains, and close with a final accounting.

Words you will meet

Executor

named by the will.

Administrator

appointed by the court when there is no will.

Letters testamentary

the document proving your authority.

Intestate

without a will.

Fiduciary

legally bound to act in another's interest.

Small estate affidavit

the form that replaces a court case beneath a state threshold.

Non probate asset

property that passes on its own.

What this does not cover

Contested wills, insolvent estates, property in more than one state, and estates with no findable heirs. Those are Module 7, The Edges.

A tool that may help

The same idea, shown in a few seconds instead of read in ten paragraphs.

• What skips probateAdd your assets and watch each one find its path, in a few seconds.
• Do I need probateFive short questions that light the route to your likely answer.

Go deeper

These are the primary sources. When in doubt, trust them over anyone, including us.

• Your county probate courtForms and instructions, the only authority that matters for filing
• New York SCPA section 1301Small estate settlement of small estates without administrationopens in a new tab
• California Probate Code section 13100Small estate collection by affidavitopens in a new tab
• California Probate Code section 10810Executor fees, the statutory formulaopens in a new tab
• Texas Estates Code chapter 205Small estate affidavit procedureopens in a new tab
• Florida Statutes section 735.201Summary administration eligibilityopens in a new tab