The Probate Law Center is designed to provide users with general information about and an overview of probate law. It is a framework to help you understand the probate process in each state of the United States. This website does not offer legal advice or opinions and is not intended to do so. For legal advice, we urge you to consult with an attorney in your jurisdiction.
The probate process has two steps. First, the will of the decedent must be “probated” or proved. During this step the validity of the will is confirmed. Second, the estate of the decedent must be settled. This means that the estate’s debts must be paid and assets transferred to family, friends, and institutions according to the terms of the will or state law.
While the general steps for probating a will and administering an estate in each state are similar, each state has a unique process based on that state’s laws and court procedures that must be followed.
This website includes state-by-state overviews of probate and estate administration laws and procedures. For each state, the first step is to identify the proper probate court and file the paperwork required to initiate the process. State rules require probate to be initiated in the specific probate court location that has jurisdiction over the decedent’s estate. Generally, that would be the county, parish, or borough in which the decedent was a permanent resident at the time of their death.
While each state has a division of its judicial system that is responsible for probate matters, the name of that court varies from state to state. For example, in some states the Probate Court is responsible for probate matters while in other states it’s the Circuit Court, Surrogate’s Court, Chancery Court, District Court, or another court.
The personal representative is the fiduciary who is appointed by the probate court to care for the tasks required to settle an estate. In some states the personal representative is referred to by another name such as “executor,” “administrator,” or “estate administrator.” A different name may also be used depending on whether the decedent left a will or if the personal representative appointed is a person other than the person nominated by the decedent in their will.
The estate administration process may be an unfamiliar process. This website is designed to provide an overview of the process for each state. Once the paperwork is filed with the clerk of the appropriate court and after the personal representative has been appointed, the personal representative is responsible for performing the tasks of inventorying the estate, paying estate debt and expenses, and distributing assets.
Each state has statutory requirements about notifying beneficiaries, heirs, and creditors about the probate proceeding. There are also requirements about the deadline for filing claims. These requirements ensure that those who have an interest in the estate have the opportunity to object to the will, file claims, or ensure that their interests are in some other way represented.
At the end of the process the personal representative, with permission of the court, distributes the remaining assets. If there is a will, the assets will go to the beneficiaries named in the will based on the terms of the will. If there is not a will, the assets will go the decedent’s heirs based on state laws of intestate succession.
Generally, the goal of family and others who have an interest in a probate proceeding is asset distribution. While in some instances it can take only a few months, in other cases it can take a year or longer. The length of probate varies depending on a number of factors. For example, each state requires that debts must be paid before assets can be distributed. However, each state has a different claims period. In addition, probate disputes, the size of the estate, and the type of assets in the estate can impact the length of probate.
This website also describes state small estate procedures. Each state has procedures that allow for an expedited administration process or that allow for distribution of assets without administration. These procedures only apply if the value of assets in the estate are minimal and if there are no complications such as objections to the will.
Disagreements during the process can have a significant impact on administration. They can lead to litigation, requiring a probate court judge to settle the dispute. Probate litigation can delay the process and can also be costly to the estate. Common types of probate disputes include:
- Will contests
- Will constructions
- Breach of fiduciary duty
- Spousal elective share disputes
- Creditor claims
- Heirship claims
General Information Only
As this site is designed to provide only a general overview of probate law, if you have questions about a specific legal matter, contact an attorney in your jurisdiction.