Reviewed 12 August 2026 · Sourced from the FTC, the CFPB, Regulation F, the Uniform Probate Code and published state court fee schedules
Probate is the court process that moves property nothing else was set up to move, and that settles the debts of the person who died. If an asset already has a beneficiary named on it, a surviving joint owner, or a trust holding it, that asset has its own mechanism and never sees a courtroom. Probate is for the leftovers — the car titled in one name, the account with a blank beneficiary line, the house on a deed with nobody else on it.
It exists because a dead person cannot sign anything. Somebody has to be given legal authority to sell the car, close the account and answer the creditors, and a court is where that authority comes from. It is also entirely a matter of state law — Congress has never written a probate statute — which is why every article promising you a national timeline and a national cost is describing a place that does not exist.
- There is no federal probate law. It is state law, administered county by county. The Uniform Law Commission's Uniform Probate Code is a model act, and Cornell's Legal Information Institute puts adoption at 18 states, at least in part. Every “typical” fee and timeline you have read is describing somewhere else.
- Most of a household's money never enters probate. Retirement accounts, life insurance, payable-on-death bank accounts, transfer-on-death brokerage registrations, joint tenancy with right of survivorship and anything held in a living trust all pass by their own mechanism.
- A beneficiary form beats a will. In Kennedy v. Plan Administrator, 555 U.S. 285 (2009), the Supreme Court unanimously upheld a plan paying an ex-wife who was still named on the form, even though her divorce decree waived it.
- Debts are paid from the estate, not by the family. The FTC: “family members usually don't have to pay the debts of a deceased relative from their own money.” The real exceptions are co-signing, a joint account, community property and a few state spousal-liability rules.
- Regulation F closes the list of people a collector may discuss the debt with. Under 12 CFR § 1006.6(a): the consumer, their spouse, a parent if the consumer is a minor, a legal guardian, the executor or administrator of the estate, and a confirmed successor in interest. An adult child who is not the personal representative is not on it.
- The claim window is short and the outside bar is absolute. In Minnesota, a Uniform Probate Code state, creditors given published notice have four months, and every claim arising before the death is barred one year after the date of death whether notice was published or not.
- The step-up in basis does not require probate. 26 U.S.C. § 1014 turns on the property being in the estate at death, not on a court touching it — so a trust, a POD account and a TOD deed all skip probate and keep the reset.
What probate actually is
Six weeks ago your mother died. There is a car titled in her name, $3,100 in checking, an old brokerage account holding about $12,000, a 401(k) from the job she retired from, and a $50,000 life insurance policy. A law firm quoted $4,200 to “handle the estate.” A collection agency has called four times about a $16,500 credit card and told you twice that it is now yours. You have $600 and a funeral to pay for.
Nobody has told you the two things that decide what happens next. Most of what your mother owned is not going through probate at all. And the credit card is not yours.
Probate is a court process that does two jobs: it transfers property that has no other mechanism to transfer itself, and it settles the claims of anyone the dead person owed. A court supervises handoffs nobody else has authority to make, and makes creditors get in line, on time, or lose the right to ask.
Probate is what a court does with property that had nothing else set up to move it. Anything with a beneficiary, a surviving joint owner or a trust already has a mechanism, and never sees a courtroom.
There is no federal probate law, and that matters more than anything else here
Congress has never written a probate statute. No national court, no federal filing, no uniform deadline, no standard fee. Probate is state law, administered county by county. The one force pulling states toward each other is the Uniform Probate Code, a model statute drafted by the Uniform Law Commission in 1969 — and a model act is not law until a legislature passes it. Cornell's Legal Information Institute puts adoption at 18 states, at least in part. “In part” carries weight: adopters took some articles and rewrote others, and most states took none of it.
This page explains a mechanism. It is not legal advice and cannot be, because your answer sits in a statute we have not read. Two free sources can give you a real one: the clerk of the probate court in the county where the person lived, and your state's court self-help site — start at USA.gov's state courts directory. A clerk can tell you which form to file but not what to put in it. For that, a licensed attorney in that state.
What never goes through probate
This is the section that saves people money, and almost nobody leads with it. For most households, the largest assets already have a transfer mechanism and skip probate entirely. The test is one question, asked of everything the person owned: is there already an instruction saying where this goes? If yes, it goes there and the court is not involved.
| What it is | What moves it | Probate? |
|---|---|---|
| 401(k), IRA, 403(b), pension | The beneficiary form on file with the plan | No |
| Life insurance | The beneficiary form on file with the insurer | No |
| Bank account with a payable-on-death (POD) designation | The POD designation | No |
| Brokerage with a transfer-on-death (TOD) registration | The TOD registration | No |
| Home in joint tenancy with right of survivorship | The survivorship language in the deed | No |
| Community property with right of survivorship | The survivorship election, where offered | No |
| Anything titled in a revocable living trust | The trust document | No |
| Home with a recorded transfer-on-death deed, where allowed | The recorded deed | No |
| Car titled in one name, no beneficiary | Nothing | Yes, absent a state shortcut |
| Brokerage with no TOD and no joint owner | Nothing | Yes |
| Home titled in the dead person's name alone | Nothing | Yes |
The mother above: her daughter is named on the $64,000 401(k), the $50,000 policy and the $3,100 checking account, so $64,000 + $50,000 + $3,100 = $117,100 moves on three forms. The $7,400 car, the $12,000 brokerage account with no TOD and about $1,800 of household goods have nothing attached.
The probate estate is $21,200 — about 15% of the $138,300 she owned.
Skipping probate is not the same as being creditor-proof
States that adopted the Uniform Probate Code's Article 6 make the recipient of a non-probate transfer answerable to the estate when the probate estate cannot cover allowed claims. Maine's version, 18-C M.R.S. § 6-102: “a transferee of a nonprobate transfer is subject to liability to any probate estate of the decedent for allowed claims … and statutory allowances.” Whether your state has that rule is a state question.
A beneficiary form beats a will
Write this one on a card and put it on the refrigerator. The form on file at the custodian controls. The will does not.
A will governs the probate estate. A retirement account, a life insurance policy, a POD account and a TOD registration are contracts, and the contract pays whoever is named. A will reading “everything to my children” does not reach an IRA whose beneficiary line still carries a spouse divorced in 2009.
The Supreme Court handled the harshest version in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009). A man divorced; the decree said his ex-wife surrendered any interest in his savings plan; he never filed a new form. He died, and the plan paid her the account, roughly $400,000. The Court held unanimously that following the plan documents was correct. The daughter, beneficiary under his will, got nothing from it.
A divorce decree does not change a beneficiary form. Neither does a new marriage, a newer will, or telling your family what you want. Some states automatically strike an ex-spouse from designations on assets they control, but for a plan governed by federal law those statutes are preempted. The only thing that changes a beneficiary form is a new beneficiary form.
If the line is blank, names somebody who died first, or names “my estate,” the asset drops back into the probate estate and gets handled by the will or the intestacy statute. That is the ordinary way an account that should have skipped probate ends up inside it, and a named contingent beneficiary is what prevents it.
Which makes the highest-value hour anyone reading this can spend not estate planning at all. It is logging into every account — every old 401(k), every IRA, every policy, the bank — and reading the beneficiary line out loud.
In the portal under “Beneficiaries” or “Account settings,” or on a form the custodian will mail. Plans from acquired employers are the worst offenders — the record may sit with a recordkeeper you have never heard of, still carrying the name you wrote in 2004.
How the process actually runs
The sequence is broadly the same across states; the vocabulary is not. An executor, a personal representative and an administrator are the same job under three names.
- Find the will and order certified death certificates. Every institution wants one and most keep it. Ordering ten to fifteen is common practice, not a rule — nobody publishes a number.
- File a petition in the probate court for the county where the person lived. The clerk will tell you which form.
- The court appoints a personal representative and issues letters — testamentary if there is a will, of administration if not. That paper is the whole point of phase one: without it a bank will not speak to you.
- Notify the heirs and publish notice to creditors, and mail notice to the ones you know about.
- Inventory the assets and value them as of the date of death. That value sets the heirs' cost basis; reconstructing it later is expensive and weaker.
- Wait out the creditor claim period — usually the longest fixed delay in the case.
- Pay what is owed in the state's priority order: administration costs, then funeral expenses, taxes, and the classes below.
- Distribute what is left, file a final accounting, close the estate.
The claim period, with real numbers from one state
Minnesota is a Uniform Probate Code state, so its deadlines show the model's shape. Under Minn. Stat. § 524.3-803, a creditor who got only published notice must present the claim within four months of first publication; one served personally gets the later of that or one month after service. And every claim arising before the death is barred one year after the decedent's death, whether or not notice to creditors has been published or served.
Those are Minnesota's numbers, not the country's. But the structure — a short window after notice plus an absolute bar measured from the death — is the pattern the UPC spread, and it is why a collector calling in year three about a claim never filed is usually calling about nothing enforceable.
Before you hire anybody: fully supervised administration is the expensive version, and in much of the country not the default. UPC states offer informal or unsupervised administration, and most states have a summary or small-estate track. Whether an attorney is required is a state question with no national answer.
Dying without a will
Intestate means dying without a valid will. It does not mean the state takes the money, which is the fear people carry into the courthouse. It means the state already wrote a will for you, and its version is a fixed order of relatives.
That order is a statute and it differs in every state, which is why this page will not print a chart. The general shape: a surviving spouse and the children first, in proportions the statute sets; then parents; then siblings and their descendants; then more remote relatives. Property escheats to the state only when the statute cannot reach a living relative, which is rare. Three things a chart would not show you:
- A spouse does not automatically get everything. In several states a surviving spouse splits with the decedent's children or parents, and the split can turn on whose children they are. Stepchildren you never adopted are usually not heirs, and in most states neither is a partner you never married.
- A will does not avoid probate. It directs probate — the court still opens the case, it just follows your instructions instead of the statute's.
- A spouse can sometimes override even a will, through an elective share plus homestead and family allowances that come off the top ahead of general creditors and beneficiaries.
If a death has already happened and there is no will, call the probate clerk in that county: ask which form opens an intestate estate, and whether it is small enough for the summary or affidavit track. If the death was a spouse, the death of a spouse guide walks the paperwork in order — including the SSA notification, since Social Security pays a one-time $255 lump-sum death payment to an eligible surviving spouse or child and you have two years to apply.
Who owes the debts
This is where survivors get hurt, and they get hurt over the phone.
The Federal Trade Commission's position: a person's debts do not disappear at death, but “those debts are owed by and paid from the deceased person's estate,” and “family members usually don't have to pay the debts of a deceased relative from their own money. If there isn't enough money in the estate to cover the debt, it usually goes unpaid.” The CFPB says the same; both are linked below.
| Your situation | Personally liable? |
|---|---|
| You co-signed the loan | Yes. You always were — the death changes nothing |
| Joint account holder on the card | Yes. It was your account too |
| Authorized user on the card | No. The CFPB: “being an authorized user generally does not obligate you to pay the debt” |
| Surviving spouse in a community property state | Possibly. Community debts can be reached; the CFPB lists the states |
| Your state makes a spouse liable for certain expenses, often medical | Possibly. State law, varies |
| Personal representative who distributed the estate without paying valid claims | Possibly — for the mistake, not the debt |
| Secured debt: a mortgage, a car loan | Nobody owes it personally; the lender can still take the collateral |
| Adult child, and the bill is a parent's nursing home | Usually no — but read on |
That last row gets used to frighten people. The National Conference of State Legislatures counts 27 states with colonial-era filial responsibility laws requiring adult children to support indigent parents, and says in the same sentence that they are “rarely invoked.” The case every article cites is a single 2012 Pennsylvania decision. A statute on the books, not a live billing practice — and a collector invoking it should be asked to name the section number.
Who a collector is even allowed to talk to
That part is federal. The Fair Debt Collection Practices Act and its rule, Regulation F at 12 CFR part 1006, define who counts as the “consumer” a collector may discuss the debt with. Section 1006.6(a) makes it a closed list: the consumer, their spouse, their parent if they are a minor, their legal guardian, “the executor or administrator of the consumer's estate, if the consumer is deceased,” and a confirmed successor in interest. A sibling, a neighbor, an employer, an adult child who is not the personal representative — not on it.
Telling you that you personally owe a debt you do not owe is a false representation under the FDCPA. The fastest way to end the calls is a short written statement that you are not the personal representative and that claims go to the estate — keep a copy. The after-collapse guide covers validation letters.
Same estate, probate value $21,200. Claims: $1,400 of administration costs, $9,200 in funeral expenses, $9,000 in final medical bills and the $16,500 card — $36,100 in all. Administration and funeral come first: $21,200 − $1,400 − $9,200 = $10,600 left. The medical bill and the card share that pro rata: $10,600 ÷ $25,500 = 41.6%, so medical gets $3,741 and the card gets $6,859.
$14,900 of debt goes unpaid and the daughter pays $0 of her own money. Whether medical expenses of the last illness outrank credit cards is set by state statute — this example assumes they do not.
What it costs and how long it takes
Search this and you get the same two numbers everywhere: probate takes nine to twenty-four months and costs three to seven percent of the estate. Those figures have no agency behind them, no study you can open, and no state that publishes them. There is no national probate cost dataset at all. The Court Statistics Project at the National Center for State Courts collects probate caseloads — not what an estate paid or how long a case ran. Anyone quoting a national average is estimating out loud.
What is knowable is knowable exactly, because somebody publishes it: your court's filing fee schedule, the newspaper's publication charge, your state's statutory fee schedule if it has one, and your state's small-estate threshold. Four phone calls.
What a statutory-fee state actually charges
California is the clearest example, because the schedule is in the statute. Under Probate Code § 10810 the attorney for the personal representative gets 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000 and 0.5% of the next $15,000,000 — and § 10800 gives the personal representative the identical schedule.
A $500,000 California estate: 4% of the first $100,000 = $4,000. 3% of the next $100,000 = $3,000. 2% of the remaining $300,000 = $6,000.
$13,000 to the attorney, plus another $13,000 to the personal representative if that fee is claimed too — $26,000. And § 10800(b) computes the value “without reference to encumbrances or other obligations on estate property.” Gross, not net: a $500,000 house with a $430,000 mortgage counts as $500,000, so the fee is calculated on the house, not the $70,000 of equity in it.
Small-estate thresholds are real, published and dated
| California procedure | Deaths 4/1/2022 – 3/31/2025 | Deaths on or after 4/1/2025 |
|---|---|---|
| Affidavit to collect personal property (Prob. Code §§ 13100–13101) | $184,500 | $208,850 |
| Small estate set-aside (§§ 6602, 6609) | $95,325 | $107,900 |
Those come from Judicial Council form DE-300, and they will change again. The point is not the number. It is that a number like this exists in your state, is published by your court, and decides whether you open a case or sign a piece of paper. California's affidavit route carries a 40-day wait and covers personal property, not real estate.
Confirmed and linked: the § 1006.6(a) contact list · Minnesota's four-month and one-year claim bars · California's § 10810 and § 10800 schedules and the DE-300 thresholds · 27 states with filial statutes, rarely invoked (NCSL) · the $255 SSA payment · the holding in Kennedy · that § 1014 basis turns on transfer at death, not probate.
Unverified: any national average probate cost or duration · what share of estates go through probate at all · whether a transfer-on-death deed exists in your state · whether medical bills of the last illness outrank credit cards where you live.
Convention, no authority behind it: “ten to fifteen death certificates” · “nine to twenty-four months” · “three to seven percent.” The last two are guesses repeated until they sound like statutes.
Where probate meets the step-up in basis
One tax question comes up over and over, and the answer is cleaner than people expect. The step-up in basis does not require probate.
Under 26 U.S.C. § 1014, an inherited asset's cost basis resets to its fair market value on the date of death. What triggers the reset is the property being included in the estate at death — not a court touching it. So a POD account, a TOD registration, a house in a revocable living trust and a home passing by transfer-on-death deed all skip probate and keep the reset. The full rule has its own page, including the exception that matters most here: traditional IRAs and 401(k)s are carved out by § 1014(c) and arrive with ordinary income tax attached however they pass.
What destroys the step-up is giving an asset away while you are alive, because then it is not yours at death and there is nothing to reset. Putting an adult child on the deed to dodge probate is the classic version, and it is a straight trade: you save a filing and hand over the parent's original basis with the house.
The job probate was doing for you, that you now do yourself
A supervised probate produces an inventory with date-of-death values in it, filed with a court. When everything passes by beneficiary form instead, nobody produces that document and nobody asks you for it — until the house or the shares sell, sometimes a decade later, and the IRS wants to know your basis. So produce it yourself in the first few months: a written date-of-death appraisal on any real estate, printed date-of-death statements on every account, one folder with the death certificate. Cost basis explains why that folder outvalues most of the estate's paperwork, and the step-up in basis calculator puts a number on it. If you inherited retirement accounts, the withdrawal guide covers the drawdown order and Stage 5 · Build Wealth sets it beside the rest of the tax picture.
What trips people up
- Assuming everything has to go through probate. Inventory the beneficiary forms first. On most estates the majority of the money is already spoken for.
- Believing a will controls a retirement account. It does not. The form on file does, and it wins even against a divorce decree.
- Paying a dead relative's credit card out of your own account. Volunteer the money and you have paid a debt the estate may never have owed in full. It cannot get it back for you.
- Distributing the estate before the claim period runs. The one mistake that turns a personal representative from a helper into a defendant.
- Using a “typical cost” number as a budget. Get your court's fee schedule and your state's small-estate threshold instead — published, free, specific to you.
- Skipping the date-of-death values because no probate case is forcing you to. The cheapest hour of the process.
- Hiring an attorney before asking the clerk which tracks exist. Find out whether an affidavit or summary proceeding covers the estate first.
- Letting a collector define the deadline. The claim bar is set by statute, not by whoever is on the phone.
Frequently asked questions
What is probate?
Probate is a court-supervised process that does two jobs: it transfers a dead person's property when nothing else is set up to transfer it, and it settles claims by anyone that person owed. It is entirely a matter of state law — Congress has never written a probate statute — so the deadlines, the fees and the paperwork are different in every state and often in every county. Assets with a beneficiary named, a surviving joint owner, or a trust holding them already have a transfer mechanism and never enter probate at all.
What assets skip probate?
Retirement accounts and life insurance with a living beneficiary named on the form, bank accounts with a payable-on-death designation, brokerage accounts with a transfer-on-death registration, property held in joint tenancy with right of survivorship, community property with right of survivorship, anything titled in a revocable living trust, and real estate passing under a recorded transfer-on-death deed where the state allows one. For most households that covers the largest assets. What is left for probate is typically a car in one name, an account with a blank beneficiary line, household property, and a house on a deed with nobody else on it.
Does a will avoid probate?
No. A will directs probate; it does not replace it. The court still opens a case, appoints a personal representative and supervises the creditor claims — it simply follows your written instructions instead of the state's default intestacy statute. The tools that actually keep an asset out of probate are beneficiary designations, payable-on-death and transfer-on-death registrations, right of survivorship, a living trust, and a state's small-estate or affidavit procedure. A will also cannot override a beneficiary form, and in most states it cannot fully disinherit a surviving spouse.
Am I responsible for my parent's debts after they die?
Generally no. The FTC states that a person's debts are owed by and paid from their estate, and that family members usually do not have to pay a deceased relative's debts out of their own money. If the estate cannot cover a debt, it usually goes unpaid. You are personally liable only where you already were: you co-signed, or you were a joint account holder. Being an authorized user on a card does not obligate you. Community property rules and a few state spousal-liability statutes can reach a surviving spouse. Twenty-seven states have filial responsibility laws, which NCSL describes as rarely invoked.
Does a beneficiary form override a will?
Yes, and this is the highest-consequence fact on the page. The form on file with the custodian controls, because a retirement account or an insurance policy is a contract, not part of the probate estate. In Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009), the Supreme Court unanimously upheld a plan paying an ex-wife who was still named on the beneficiary form, even though her divorce decree had waived any interest. A divorce, a remarriage or a newer will does not change a beneficiary form. Only a new form does.
How long does probate take and what does it cost?
Nobody can honestly tell you nationally. There is no federal probate law and no national dataset on estate costs or durations; the National Center for State Courts collects probate caseloads, not what any estate paid. The widely repeated ranges of nine to twenty-four months and three to seven percent of the estate have no agency or published study behind them. What you can get exactly: your court's filing fee schedule, the newspaper's publication charge, your state's statutory fee schedule if it has one, and your state's small-estate threshold. All are published.
Do you need probate to get the step-up in basis?
No. Under 26 U.S.C. section 1014 the basis reset is triggered by the property being included in the estate at death, not by a court proceeding. A payable-on-death account, a transfer-on-death brokerage registration, a living trust and a transfer-on-death deed all avoid probate and keep the step-up. Traditional IRAs and 401(k)s are excluded from the step-up entirely by section 1014(c), however they pass. The practical catch is that when there is no probate case, nobody creates the date-of-death inventory for you — so record those values yourself in the first few months.
Related terms
Where to go next
- If a death has just happened, start with the death of a spouse guide — survivor benefits, joint debt and the order the paperwork has to go in. Free, no account.
- Work through Stage 5 · Build Wealth, where estate basics sit next to taxes, housing and income streams.
- Put a number on the tax at stake with the step-up in basis calculator.
- If you have inherited retirement accounts and now have to draw them down, read the retirement withdrawal guide.
- If collectors are calling about accounts that are genuinely yours, the after-collapse guide covers validation and what they can and cannot do.
- Browse every definition in Learn the Lingo.
- Federal Trade Commission, Debts and Deceased Relatives — that debts are owed by and paid from the estate, that family members usually do not pay from their own money, and the short list of situations creating personal liability.
- Consumer Financial Protection Bureau, Does a person's debt go away when they die? — the statement that a debt an estate cannot pay generally goes unpaid, and the community property state list.
- Consumer Financial Protection Bureau, Regulation F, 12 CFR § 1006.6 — Communications in connection with debt collection — the closed list in § 1006.6(a) of who counts as the “consumer” a collector may discuss a debt with, including the executor or administrator of a deceased consumer's estate.
- Consumer Financial Protection Bureau, Authorized user liability on a deceased relative's card — that an authorized user generally is not obligated to pay the debt.
- Cornell Legal Information Institute, Uniform Probate Code — the model act's role and the count of 18 states adopting it at least in part, which is the basis for this page's refusal to quote national rules.
- Minnesota Office of the Revisor of Statutes, Minn. Stat. § 524.3-803, Limitations on presentation of claims — the four-month window after published notice, the one-month-after-service alternative, and the one-year bar measured from the date of death.
- Maine Legislature, 18-C M.R.S. § 6-102, Liability of nonprobate transferees for creditor claims and statutory allowances — that avoiding probate does not automatically put an asset beyond the estate's creditors in a state with this provision, and the carve-out for a survivorship interest in joint real estate.
- National Conference of State Legislatures, States Spell Out When Adult Children Have a Duty to Care for Parents — the count of 27 states with filial responsibility laws and the statement that they are rarely invoked.
- Judicial Council of California, Form DE-300, Maximum Values for Small Estate Set-Aside and Dispositions Without Administration — the $208,850 affidavit limit and $107,900 set-aside limit for deaths on or after April 1, 2025, and the prior figures.
The figures on this page are checked against the source that publishes them, and dated. Published rates move after the release named above — the linked source always carries the current number. This page explains a term; it does not recommend a product.