Trust Law/Level II · Do you need one?/2.1 Wills, probate and the alternatives/Lesson 3
Probate: time, cost and publicity
The court process that handles your assets after death, and why it takes so long.
Education, not legal advice. Trust law changes from country to country and state to state, and the right structure depends on your situation. Anything you sign should be drafted or reviewed by a qualified lawyer where you live.
The lean path
The cheapest, lowest-tax, simplest and most private route the law allows, best first. Each step names the rule it rests on and the condition that keeps it lawful.
- Cheapest probate is none: POD/TOD accounts, beneficiary designations, survivorship titles and transfer-on-death deeds (Texas Estates Code ch. 114; California Probate Code §5600 onward) pass outside court. Catch: if every named beneficiary dies first, the asset returns to probate.
- California: personal property up to $208,850 passes by affidavit without court for deaths from 1 April 2025 (Probate Code §13100), and a main home up to $750,000 by simplified petition (§13151). Catch: wait 40 days after death; values exclude non-probate assets.
- Florida summary administration covers estates up to $150,000 after exempt property from 1 July 2026 (Fla. Stat. §735.201), up from $75,000; Texas allows a small-estate affidavit up to $75,000 excluding homestead (Estates Code §205.001). Catch: Texas’s affidavit applies only without a will.
- Know the bill you are avoiding: California’s statutory fees (Probate Code §§10800, 10810) on a $500,000 gross estate are $13,000 to the executor plus $13,000 to the attorney. Catch: fees run on gross value without deducting mortgages, so a modest net estate can pay heavily.
- For privacy, assets passing by beneficiary form or a funded trust stay out of the public probate file. Catch: a transfer-on-death deed is recorded in public land records, and a trust becomes public only if someone takes it to court.
MaterialsA copy of any existing will or trust documentsYour state court’s probate self-help page, including any fee rules or small-estate limits it listsA list of all bank accounts, real estate, and personal property you own
Wonder
- How many months does this process usually take?
- Who pays the attorney fees during probate?
- Can I keep my family’s financial details private from the public?
Explore
- Probate is the court-supervised process for proving a will and settling a dead person’s estate. In the US it is also used when there is no will (intestacy); then state law decides who inherits. The court appoints a personal representative: an executor if the will names one, or an administrator if not. That person gathers the assets, pays debts and distributes what is left. The main case is usually held in the state where the person lived; land in another state can need a second, ‘ancillary’ probate there.
- The first step is asking the probate court to accept the will as valid. If it does, the court issues letters testamentary to the executor; when there is no will, or no executor able to serve, it issues letters of administration to an administrator. These papers prove the representative’s authority. Banks, brokers and title companies usually will not release or transfer the dead person’s property without them. The aim is that one legally recognised person is answerable for the estate.
- Next comes inventorying assets. The representative lists everything owned by the deceased. Creditors must be notified through legal notices published in newspapers or direct mail. There are specific time limits for filing claims against the estate. If a creditor misses this window, they may lose their right to payment from that estate.
- Debts, expenses and taxes are dealt with before beneficiaries are paid. The estate may need to file its own income tax returns for income earned after death. Federal estate tax applies only to very large estates (the 2026 exclusion is $15 million per person), though a few states have lower thresholds of their own. Bills such as property tax and insurance keep running while the estate is open. Many states set an order of priority for paying claims if there is not enough money for everyone.
- Time is a major factor. Probate often takes months, and a year or more is common; the length depends on the state, the court’s workload, the kind of property and whether anyone disputes the will. Selling real estate or waiting out lawsuits adds time. Some property never enters probate at all: assets held in joint tenancy with right of survivorship, accounts with named beneficiaries, and property in a funded trust. Property held as tenants in common does go through the estate.
- Probate files are usually public: anyone can generally see the will and, in many states, inventories and accounts filed with the court. Many states offer simplified procedures for small estates. Costs include court fees, publication and appraisal costs, and fees for the lawyer and the representative. California is unusual: its Probate Code (§§10800, 10810) sets the ordinary fee for both the executor and the attorney at 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, then lower rates. Most states instead allow ‘reasonable’ fees, which vary widely.
Key facts
- Probate is the court process that proves a will and appoints an executor or administrator to manage the estate.
- In the US, if a person dies without a will (intestacy), state laws determine who inherits their assets.
- Letters testamentary are issued by the court to prove an executor’s legal authority to handle assets.
- Creditor claims must be filed within specific time limits; missing these deadlines can bar payment from the estate.
- In the US, probate records such as the will are generally public court documents.
- California sets statutory fees for both executors and their attorneys as a percentage of the estate’s gross value (Probate Code §§10800, 10810); most states use a ‘reasonable fee’ standard instead.
Exercise nine, six, three, one
9CollectGather 9 specific assets or debts you currently hold (e.g., house deed, car title, credit card balance).
6ClusterSort these 9 items into 6 categories: Real Estate, Bank Accounts, Investments, Vehicles and Personal Property, Debts, and Items With a Named Beneficiary or Co-owner.
3DistillReduce the 6 categories to 3 groups: likely to go through probate, likely to pass outside probate, and not sure (check the title or form).
1CrystallizeWrite 1 sentence explaining how your specific asset mix affects the likely duration and cost of your estate administration.
Fact check
Dates, figures and claims checked against the published sources listed below.