estate

Probate After a Death

Federal & State Law Editorial TeamLast reviewed: May 2026

Immediate Deadlines

File petition to open probate:30 days to 4 months after death (state-dependent)
Notify creditors and publish notice:Within 30-90 days of appointment as executor
File federal estate tax return (Form 706):9 months after death if gross estate exceeds $13.61M
File decedent's final income tax return:April 15 of year after death

Documents You'll Need

Certified copies of death certificate (order 10-15)
Original signed will and any codicils
List of assets (real estate, accounts, vehicles, valuables)
List of debts (mortgages, credit cards, medical bills)
Beneficiary designations for life insurance, retirement accounts
Most recent tax returns (3-5 years)
Marriage certificate and divorce decrees (if applicable)

Step-by-Step

Secure the will and key documents

Locate the original signed will — copies are often not accepted by probate court. Check safe deposit boxes, home safes, and the decedent's attorney's office. Secure financial records, deeds, titles, and digital account passwords. Lock the decedent's home and inventory valuable personal property. Do not distribute anything to family members before probate begins, even small items.

Order multiple certified death certificates

Request 10-15 certified copies from the county vital records office or funeral home, typically $15-$30 each. Banks, insurers, the Social Security Administration, retirement plan administrators, and the probate court will each demand an original certified copy. Running out mid-process delays asset collection and creates significant administrative friction during an already stressful period.

File the probate petition

File a petition for probate in the county where the decedent lived. Submit the original will, death certificate, and Letters Testamentary application. Filing fees run $200-$1,200 depending on estate value and state. The court issues Letters Testamentary (with will) or Letters of Administration (no will), formally authorizing the executor or administrator to act on behalf of the estate.

Notify heirs, beneficiaries, and creditors

Send formal written notice to all named beneficiaries, intestate heirs, and known creditors. Publish a notice to creditors in a local newspaper for 1-3 weeks as your state requires. Creditors typically have 90-180 days from notice publication to file claims. Unfiled claims are generally barred. Maintain a log of every notice sent with proof of mailing.

Inventory and appraise estate assets

Within 60-120 days of appointment, file a written inventory listing every probate asset and its date-of-death fair market value. Real estate, businesses, and unique items need professional appraisals ($300-$2,000 each). Non-probate assets (joint tenancy property, payable-on-death accounts, life insurance with named beneficiaries, retirement accounts) bypass probate and aren't included in the inventory.

Pay debts, taxes, and administration expenses

Use estate funds to pay valid creditor claims in the order of priority your state sets (administration costs first, then funeral, taxes, secured debts, unsecured debts). File the decedent's final 1040 by April 15 of the year after death, plus any fiduciary income tax returns (Form 1041) for income earned by the estate. Federal estate tax (Form 706) is due in 9 months only if gross estate exceeds $13.61M (2024).

Distribute remaining assets and close the estate

After debts and taxes are paid, distribute remaining assets per the will (or per intestate succession law if no will). File a final accounting with the court showing all receipts, disbursements, and distributions. Beneficiaries sign receipts. The court enters an order discharging the executor and closing the estate. Keep estate records for at least 4 years in case of tax audit or beneficiary dispute.

How This Varies by State

Small-estate thresholds let families skip full probate: California $184,500 (uses Affidavit for Real Property under $61,500), Texas $75,000 (Small Estate Affidavit), Florida $75,000 (Summary Administration), New York $50,000 (Voluntary Administration). Total probate timelines: California 9-18 months minimum, Texas 6-9 months for independent administration, Florida 6-12 months, New York 7-12 months. Louisiana follows civil-law 'succession' rules. Community property states (CA, TX, AZ, NV, WA, ID, NM, WI, LA) treat marital assets differently. Some states (FL, TX) have homestead protections shielding the home from most creditors.

Federal Law Considerations

Federal estate tax (Form 706) applies only to gross estates exceeding the unified credit exemption — $13.61M per individual in 2024 (scheduled to sunset to roughly $7M in 2026 absent congressional action). The portability election lets a surviving spouse use any unused exemption from the predeceased spouse. Decedent's final Form 1040 is due April 15 of the year after death; the estate files Form 1041 for income earned during administration. Federal benefits (Social Security, VA, federal pensions) must be notified within days — the SSA must be told immediately and any post-death payments must be returned.

Common Mistakes to Avoid

Distributing assets to family members before creditors are paid (executor personally liable)
Failing to file the will within state-mandated deadlines (some states 30 days)
Missing the 9-month federal estate tax filing deadline (Form 706) on large estates
Ignoring digital assets (cryptocurrency, online accounts, domain names)
Commingling estate funds with personal accounts
Not getting professional appraisals on real estate and business interests

Official Resources

IRS: Estate Tax (Form 706)Social Security: Survivors Benefits USA.gov: What to Do When Someone Dies

Related Resources on This Site

Tools

Forms

petition for probate
small estate affidavit
letters testamentary

Guides

When to Get a Lawyer

Any estate over $1 million or with real property
Contested wills, will challenges, or family disputes over inheritance
Estates with business interests, partnerships, or complex investments
Out-of-state property requiring ancillary probate
Estates approaching the federal estate tax threshold ($13.61M)

Frequently Asked Questions

Do all estates have to go through probate?

No. Assets with beneficiary designations (life insurance, 401(k), IRA), joint tenancy property, payable-on-death accounts, and assets in a living trust bypass probate. Estates below the small-estate threshold can use simplified affidavit procedures. A revocable living trust avoids probate entirely if properly funded during the decedent's life.

How long does probate take?

Most simple estates close in 6-12 months. Contested wills, complex assets, or tax audits can extend probate 2-5 years. California requires a mandatory 4-month creditor notice period. Federal estate tax returns add 9-15 months if filed. Independent administration (available in Texas and many states) is much faster than formal supervised administration.

Can I be paid for serving as executor?

Yes. State law sets executor compensation, typically 2-5% of the estate value or an hourly rate. California uses a statutory percentage (4% of first $100K, decreasing thereafter). Executor fees are taxable income to the executor but deductible to the estate. Family-member executors often waive compensation since it's taxable and would otherwise pass tax-free as inheritance.

What if there is no will?

The estate is 'intestate' and assets pass according to state intestate succession law, which favors spouses, children, then parents, siblings, and other relatives in a fixed order. The court appoints an administrator (usually the surviving spouse or adult child). Unmarried partners, stepchildren without adoption, and friends inherit nothing under intestate succession — making a will essential.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.