How Probate Works: A State Comparison

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is Probate?

Probate is a legal procedure that happens after an individual’s death to ensure proper distribution of their assets, as specified in their will. This process consists of a series of filings and hearings overseen by a probate judge.

Key steps involved in the probate process include the following:

Establishing and Validating the Decedent’s Will

In this step, the executor of the will or an interested party submits the decedent’s will to the probate court. The court then reviews the will to ensure it meets legal requirements, such as proper signatures and witnessing.

For example, in most states, a will must be signed by the testator (the person making the will) and witnessed by at least two disinterested parties (people who do not stand to gain from the will).

Submitting an Inventory and Appraisal of the Decedent’s Property

The executor is responsible for creating a detailed inventory of the decedent’s assets, including real estate, bank accounts, investments, personal property, and other valuable items. This inventory must be submitted to the court. An appraisal may be necessary to determine the fair market value of certain assets, such as real estate, antiques, or valuable art collections.

Settling the Estate’s Taxes and Debts

Before distributing the assets, the executor must ensure all outstanding debts, taxes, and expenses related to the estate are paid. For instance, the executor may need to pay the decedent’s final income tax return any estate taxes due. The executor may also need to settle outstanding bills or debts, such as credit card balances, mortgage payments, or medical expenses. The executor may need to liquidate some assets to cover these expenses.

Distributing the Estate’s Assets According to the Decedent’s Will or the State’s Intestacy Laws

Once debts and taxes have been settled, the executor is responsible for distributing the remaining assets to beneficiaries as outlined in the decedent’s will. For example, if the decedent’s will specifies that their home should be given to their children, the executor will ensure the property is transferred to the named beneficiaries.

If the decedent dies without a valid will (intestate), the distribution of assets will follow the state’s intestacy laws. These laws typically prioritize the surviving spouse, children, and other close relatives in a predefined order.

For instance, in a state that follows the “community property” rule, the surviving spouse may receive half of the community property, while the decedent’s children divide the remaining half.

In a “common law” state, the surviving spouse may receive a more significant share of the estate, with any remaining assets divided among the children.

The estate executor is responsible for initiating probate and distributing assets to beneficiaries. Any interested party may begin the process if the named executor does not initiate probate.

Interested parties include creditors, beneficiaries, or anyone who may benefit from the will. If the will does not name an executor, or if the named executor is unavailable, the court will appoint one to oversee the process.

How Does the Probate Process Vary From State to State?

The probate process varies from state to state due to differences in laws and regulations. Although most states have adopted the Uniform Probate Code (UPC) to streamline and standardize probate administration, some variations still exist.

The UPC’s primary goal is to simplify the probate process and reduce associated costs, ensuring consistency across state lines.

Some states offer a more straightforward probate process for smaller estates, which are usually those with a total property value of less than $100,000. However, the definition of a small estate depends on state law.

In certain cases, a state may allow an estate that meets specific requirements to skip the entire probate process.

For example, Texas allows filing a Small Estate Affidavit to transfer property to a decedent’s heirs if the estate’s value, excluding homestead or exempt property, is less than $75,000.

In addition to variations in estate value thresholds for simplified probate processes, states may also differ in terms of the following:

Probate Filing Fees and Costs

Fees and costs associated with probate can vary by state. For example, in California, probate filing fees are determined based on the estate’s value, while in Florida, a flat fee is charged for filing a formal probate administration.

Additional costs can include fees for attorneys, appraisers, and accountants, which may differ based on local rates and the complexity of the estate.

Types of Assets Considered for Calculating Estate Value

The assets included in an estate’s value calculation can differ among states. In some states, only probate assets, such as individually owned property and bank accounts, are considered. In others, non-probate assets, like jointly owned property or assets with designated beneficiaries (e.g., life insurance policies or retirement accounts), may also be included.

Each state has its specific guidelines for determining the assets that must be considered when calculating an estate’s value.

Timeframes for Completing the Probate Process

The duration of the probate process varies depending on the state, the size and complexity of the estate, and any potential disputes or challenges.

In some states, a probate process may be completed within six months to a year; in others, it may take several years. Additionally, each state has its deadlines for filing documents and taking specific actions during probate, such as notifying creditors or submitting an inventory of assets.

Requirements for Notifying Creditors

States have different requirements for how and when creditors must be notified of a decedent’s death and the ongoing probate process.

In some jurisdictions, creditors must be notified directly; in others, a public notice in a local newspaper may be sufficient.

The time allowed for creditors to submit claims against the estate can also vary, with some states requiring a window of 60 days, while others may allow up to six months or more.

Procedures for Resolving Disputes Over the Estate

The process for resolving disputes related to an estate, such as challenges to the validity of a will or disagreements among beneficiaries, can differ among states.

For example, some states may require mediation or alternative dispute resolution methods before court proceedings, while others may allow parties to go straight to litigation.

Additionally, states may have different statutes of limitations for contesting a will or filing a claim against an estate.

Research your state’s specific probate laws and regulations before initiating the probate process to ensure compliance with local requirements. Consulting an attorney experienced in probate law within your state can be invaluable in navigating the complexities of the probate process.

Do I Need an Attorney for the Probate Process?

If you have to file for probate, knowing the laws in your area is crucial. To ensure you get the best possible outcome, you should consult with a qualified probate attorney with extensive knowledge of your local laws.

An experienced probate attorney can help you determine whether you can avoid probate or qualify for a simplified process. They can also assist you in gathering and submitting all the necessary paperwork for the probate process. Finally, an attorney can represent your interests in court if any legal disputes arise during probate.

Use LegalMatch to find the right probate lawyer today.

Save Time and Money - Speak With a Lawyer Right Away

  • Buy one 30-minute consultation call or subscribe for unlimited calls
  • Subscription includes access to unlimited consultation calls at a reduced price
  • Receive quick expert feedback or review your DIY legal documents
  • Have peace of mind without a long wait or industry standard retainer
  • Get the right guidance - Schedule a call with a lawyer today!

16 people have successfully posted their cases

Find a Lawyer