Chapter 13: Probate — What It Is and How Long It Takes

Why the word "probate" makes people panic

Every family has heard it. Almost nobody understands it. "You have to avoid probate" is the single most common piece of estate planning advice given by people at dinner parties, and it is repeated so often that it has acquired a mystique far beyond what the actual process warrants.

Probate is not mysterious. Probate is not always bad. Probate is not always long. Probate is a court process for validating a will and supervising the distribution of the estate, and it has a range of outcomes depending on the state, the size of the estate, and the complexity of the situation.

This chapter tells you what probate actually is, when you care about avoiding it, and what to expect if you can't.

What probate actually does

When someone dies, their property has to get from them to whoever inherits it. Some of that property passes automatically — joint ownership with right of survivorship, beneficiary designations on retirement and insurance, assets in trusts. Those are non-probate assets and bypass the court entirely.

Everything else goes through probate. Probate is a court process that does four things:

1. Validates the will (or, if no will, applies intestacy law).
2. Appoints an executor/administrator with legal authority to act for the estate.
3. Supervises the inventory, debt-paying, and distribution of estate assets.
4. Closes the estate and releases the executor from liability.

That's the machinery. The "length" and "cost" of probate depend on how complex the estate is, how cooperative the parties are, and what state you're in.

The range of probate experiences

It helps to understand that probate ranges widely in complexity and cost.

Simplest: small estate / summary procedure. Most states have expedited procedures for small estates (often estates under $100,000 to $200,000 in probate assets, depending on the state). These often involve filing a short affidavit rather than a full probate case. Cost: under $500. Timeline: weeks to a few months.

Informal probate. Some states allow "informal" probate for simple estates with an undisputed will. Minimal court involvement; the executor does most of the work with court filings for key events. Cost: a few thousand in attorney fees. Timeline: 6-12 months.

Formal probate (supervised). Full court supervision. Every major action requires court approval. Required in some states, for some situations. Cost: more attorney time (5-8% of estate not unusual). Timeline: 12-24 months.

Contested probate. A beneficiary challenges the will, or multiple parties dispute distribution. Can become litigation. Cost: five- to six-figures in legal fees. Timeline: 2-5 years.

Ancillary probate. Required in every state where the decedent owned real property. If the decedent lived in Washington but also owned a condo in Arizona, both states run probate proceedings. Duplicative costs and delays.

For most American estates with normal complexity and a valid will, the experience is in the "informal" range: 8-14 months, a few thousand in attorney fees, real but manageable.

State variation is massive

This cannot be overstated. Probate in California is a very different experience than probate in Pennsylvania than probate in Texas than probate in Oklahoma. Some of the differences:

Fee structures. California has statutory probate fees set as a percentage of the estate. For a $1 million estate, attorney fees and executor fees can each be $23,000 — so $46,000 total in mandatory fees. Most states allow "reasonable" fees that typically work out to less than California's statutory scheme.

Small estate thresholds. Vary from about $15,000 to $200,000+. Check your state.

Time limits. Some states require probate to be initiated within a certain period after death (often 2-4 years). Others have no strict limit.

Formal vs. informal options. Some states allow "independent administration" that minimizes court supervision. Others require heavy court involvement for every action.

Required notifications. Varies — to creditors, to heirs, to surviving spouse — by state.

Homestead exemptions. Many states have special rules protecting a portion of the primary residence from creditor claims. Different rules.

Medicaid estate recovery. Some states aggressively recover from probate estates (to repay Medicaid expenditures); others don't. Affects whether families choose probate or non-probate transfers.

When someone says "probate takes 12-18 months and costs 5% of the estate," they are generalizing across 50 states, and your specific experience can vary dramatically. Talk to a local attorney about what probate looks like in YOUR state.

How long probate actually takes

Rule of thumb: in most states, simple probate runs 8-14 months from filing to closing.

Why so long? Several structural reasons.

Creditor claim period. Most states require a waiting period (often 4-6 months) during which creditors can file claims against the estate. The executor cannot distribute until this period ends.

Tax filings. The estate's final individual income tax return and the estate's fiduciary income tax return must be filed and processed. Federal estate tax returns (if required) add another layer. These can take months.

Court scheduling. Even routine hearings can be scheduled weeks or months out, depending on court docket. Small estates in busy urban counties can move slower than you'd expect.

Asset liquidation. Selling real estate, settling business interests, getting appraisals — takes time.

Beneficiary coordination. Getting signatures from heirs, especially ones in other states or countries, takes longer than you think.

For estates with complicating factors — business interests, contested wills, litigation, out-of-state property, tax complexity — 18-36 months is common.

How much probate actually costs

The major costs:

Court filing fees. $200-$1,000 depending on state and estate size.

Attorney fees. Variable. California's statutory scale: 4% on first $100K, 3% on next $100K, 2% on next $800K, 1% on next $9M — so on a $1M estate, the statutory attorney fee is $23,000. Most states allow "reasonable" fees, which typically fall between 2% and 4% of the probate estate, or $250-$500/hour for the lawyer's time.

Executor fees. If taken (often waived by family members who are also beneficiaries). Similar range to attorney fees in percentage terms.

Bond. Some estates require the executor to post a bond (an insurance policy that protects beneficiaries against executor misconduct). Can cost a few hundred to a few thousand. Often waived if the will specifies.

Appraisal fees. $400-$800 per major asset requiring appraisal.

Publication costs. For required legal notices to creditors. A few hundred dollars.

Accounting / CPA fees. For tax preparation. $1,500-$5,000 depending on complexity.

Miscellaneous. Title transfer fees, certified copy fees, notary fees.

For a $500,000 probate estate, total costs are usually $15,000-$30,000. For a $1M estate, $25,000-$50,000. For smaller estates, much less. For contested estates, much more.

These costs come out of the estate, not out of your pocket.

Why avoiding probate matters (and when it doesn't)

The case for avoiding probate:

1. Cost. Even 3-5% of the estate is a lot of money. $30,000 of a $1M estate is real money that could have gone to heirs instead of attorneys and the court system.

2. Time. Non-probate transfers (via trust or beneficiary designation) happen within weeks. Probate takes 8-24 months. For heirs who need the money (to pay off a mortgage, care for a parent, handle urgent expenses), the delay matters.

3. Privacy. Probate is a public proceeding. The inventory of the estate, the will, the creditor claims — all public record. Anyone can look up what Uncle Harold was worth and who got what. For some families, this is not a problem. For others, it is.

4. Court involvement. The court oversees probate. This adds bureaucracy, paperwork, and a third-party decision-maker into family business. For cooperative families, it's irritating. For uncooperative families, it can entrench conflict.

5. Multi-state complexity. If you own real estate in multiple states, probate happens in each of them separately. Very expensive. Easily avoided with a trust.

The case for not over-optimizing probate avoidance:

1. Probate is the default for a reason. It provides court supervision, creditor protection, and dispute resolution. For some estates, that's valuable.

2. Trust creation costs money up front. Trusts cost $1,500-$5,000 to set up and require ongoing attention (funding, updates). For smaller estates, the upfront cost may exceed the probate savings.

3. Trusts require funding. An unfunded trust does not avoid probate. Many DIY trusts sit unfunded and the heirs end up going through probate anyway.

4. Probate has creditor cut-off. In probate, unknown creditors must file claims within the statutory window or lose them. In trust administration, this protection is weaker. For someone with potential creditor exposure (medical debts, lawsuits), probate can be beneficial.

5. Small estates get simplified probate. If your estate is under your state's small-estate threshold, probate is cheap and fast. Trust is overkill.

Most estates should consider a trust — with nuance

My general guidance, after fifteen years of watching the mechanics play out:

Good candidates for a trust-based plan (avoiding probate):

• Estate includes real property (one or more houses).
• Estate size exceeds the state's small-estate threshold significantly.
• Owner lives in California or another high-probate-cost state.
• Owner has property in multiple states.
• Owner has privacy concerns.
• Owner is in a blended family.
• Owner wants a smooth incapacity transition too (not just death).

Acceptable for a will-only plan:

• Small estate, most assets already have beneficiary designations or joint ownership.
• Simple family situation (no second marriage, no complex heirs).
• Owner lives in a state with favorable, simple probate procedures.
• Owner does not own real estate.
• Owner values the creditor cutoff of probate.

When in doubt, spend the money on an attorney consultation to make the decision deliberately. The decision between "will only" and "will + trust" is worth $250-$500 of professional advice.

The actual step-by-step of probate (for executors)

If you find yourself going through probate, here is the rough sequence of what happens:

Month 1-2: Initiation.

• File the will and petition for probate in the appropriate county court.
• Receive letters testamentary appointing the executor.
• Notice is published and sent to known creditors and heirs.

Month 2-4: Inventory.

• Executor inventories all probate assets.
• Appraisals completed for valuable items.
• Inventory filed with the court.

Month 3-8: Claims and management.

• Creditor claim period runs (4-6 months typical).
• Executor reviews claims, accepts or rejects.
• Ongoing management of estate (maintaining property, paying bills).

Month 6-12: Taxes and debts.

• Final individual income tax return filed.
• Estate income tax returns filed.
• Estate tax returns filed (if required).
• Debts paid in priority order.

Month 8-14: Preliminary distributions (if appropriate).

• Some courts allow preliminary distributions of clearly non-contested items.
• Good practice for liquid assets that won't be affected by final accounting.

Month 12-18: Final accounting and distribution.

• Executor prepares final accounting of all estate activity.
• Beneficiaries review and sign off (or object).
• Distributions made.
• Receipts collected from beneficiaries.

Month 14-20: Closing.

• Final accounting filed with court.
• Court approves and closes the estate.
• Executor is discharged.

This is rough. Some estates move faster (small, simple, cooperative family). Some much slower (contested, complex, uncooperative).

When probate goes wrong

Red flags that suggest probate is going to be longer and more expensive than normal:

• Any family member has retained their own attorney separate from the estate's.
• Heirs are not speaking to each other.
• There's a prior draft of the will floating around that differed from the final.
• A caregiver, new spouse, or recent acquaintance is prominently in the will.
• The will was signed close to death or during known cognitive decline.
• The estate includes a family business with multiple interested heirs.
• Significant assets are hidden or undisclosed.
• One heir has dramatically different financial circumstances than others.

Any of these warrants extra attention. An attorney who specializes in contested estates (not just routine probate) should be consulted early.

Your will without probate

Some techniques to avoid probate without a full trust:

Joint tenancy with right of survivorship. For married couples, often the house and major accounts are titled this way. At one spouse's death, the other inherits automatically.

Transfer on death / Payable on death designations. Chapter 5. Use them aggressively.

Beneficiary designations on everything. Life insurance, retirement, 529 plans. Check these annually.

Transfer on Death Deed for real estate. Available in about 30 states. Simple, cheap, effective for the family home.

Small estate affidavit / summary procedure. For tiny estates, use the statutory shortcut.

Living trust. For anything larger than small estate, this is the main tool.

Most estates that avoid probate use a combination — beneficiary designations for retirement/insurance, joint ownership for the house, TOD/POD for brokerage, and a pour-over will as the catch-all.

What to do this week

If you are planning your estate:

1. Inventory your probate vs. non-probate assets. Everything that has a beneficiary or joint owner is non-probate. Everything else is probate.
2. Estimate the size of your probate estate. If it's above your state's small-estate threshold, consider reducing it via TOD/POD designations, trust funding, or joint ownership.
3. Ask your attorney whether a trust-based plan makes sense for your situation and state.
4. Update all beneficiary designations to maximize non-probate transfers.
5. Consider a TODD (transfer on death deed) for your house if your state allows it.

If you are the executor of an estate going through probate:

1. Hire a local probate attorney if you haven't already.
2. Don't panic about the timeline. 12-18 months is normal.
3. Open a dedicated estate bank account for all estate transactions.
4. Keep meticulous records of every transaction.
5. Communicate with beneficiaries regularly about progress.
6. Respond to creditor claims within the statutory period.
7. Do not distribute assets until debts are paid and the claim period has closed.

Next chapter: what happens when there is no will. Most families think this is a tidy fallback — the state has rules, it'll work out. It usually doesn't. Let me show you why.