The Executor's Complete Guide to Probate: Everything You Need to Know

You've been named executor. Congratulations—and I'm sorry.

If you're reading this, you're likely grieving and facing a process that sounds like it requires a law degree. The good news: most people can successfully execute an estate without becoming a lawyer. The bad news: you need to understand what you're doing, and fast.

This guide walks you through the entire probate process—from the moment someone dies, through the final distribution. We'll cover what probate is, what you're responsible for, what timeline to expect, and how to avoid the mistakes that cost other executors thousands in fees and family conflict.

Part 1: What Is Probate, Anyway?

Let's start with a definition that actually makes sense.

Probate is the legal process of settling a deceased person's estate under court supervision.

In other words: there's a bunch of stuff (assets, debts, property) in the dead person's name. Probate is the official process of transferring that stuff to the right people and paying off what's owed.

You probably knew that. What you might not know:

Not Everything Goes Through Probate

This is crucial. Many executors assume they need to probate everything, and many assets don't require probate at all.

Assets that typically bypass probate:

• Joint bank accounts (transfer automatically to the surviving owner)
• Retirement accounts (401k, IRA—go to named beneficiaries)
• Life insurance proceeds (go to named beneficiaries)
• Property with a "payable on death" designation
• Trusts (handled separately, outside probate)

Assets that typically go through probate:

• Solely-owned real estate
• Bank accounts in the deceased's name only
• Investment accounts with no beneficiary named
• Vehicles titled in the deceased's name only

One of your first jobs is to identify what assets exist and which ones actually require probate. This dramatically affects your timeline and workload.

Why Probate Exists

Probate isn't just bureaucratic red tape (though there's plenty of that). It serves real purposes:

• Creditor notification: Probate creates a legal deadline for creditors to make claims. This protects the estate from surprise debts appearing years later.
• Tax clearance: The probate process creates a final accounting that the IRS and state can review.
• Dispute resolution: If someone contests the will, probate court is where that gets settled.
• Formal title transfer: For real estate and certain other assets, probate officially transfers titles.

Whether you like it or not, probate is your safety mechanism as executor. It creates a documented process that protects you and the beneficiaries.

Part 2: What Are Your Actual Responsibilities?

This is where confusion typically starts. People think executor = handling everything. In reality, you have specific legal duties.

The Core Duties (What You MUST Do)

1. Locate and secure the will

This is your starting point. You need:

• The original will (or certified copy)
• Any codicils (amendments to the will)
• The death certificate (multiple certified copies—order more than you think you'll need)

Where to look:

• Safe deposit boxes
• Home office or filing cabinet
• Attorney's office (if they drafted it)
• Court records (if already filed)

Can't find it? This gets complicated. Most jurisdictions have a process for handling lost wills, but it's slower and more expensive. Encourage family members to help search.

2. File the will with the probate court

Every state has different rules about timing (usually 30-90 days), but this is non-negotiable. You'll file:

• The original will
• Petition for probate
• Death certificates
• Executor oath

This is typically done by an probate attorney (even in simple estates, this $300-500 investment saves time and mistakes).

3. Notify heirs and creditors

By law, you must notify everyone with legal interest in the estate:

• All beneficiaries named in the will
• Heirs under state law (even if not in the will)
• Known creditors
• Newspapers (legal notice) so unknown creditors can come forward

This is mostly paperwork and certified mail, but it's legally required and timestamped.

4. Inventory the estate

You need to identify, locate, and value every asset as of the date of death. This means:

• Bank statements
• Investment account statements
• Real estate appraisals
• Vehicle titles
• Retirement account statements
• Valuations of tangible property (jewelry, art, collectibles)

You'll create a detailed inventory that's filed with the court. Professional appraisals are often required for real estate and high-value items.

5. Manage and protect estate assets

While probate is pending, you're responsible for:

• Keeping assets secure
• Maintaining real property (insurance, taxes, maintenance)
• Continuing insurance on vehicles and property
• Protecting bank accounts
• Filing final tax returns
• Paying estate bills and taxes from estate funds

This is an active duty. You can't just let things sit. You're liable if assets deteriorate or are lost due to negligence.

6. Pay debts and taxes

The estate pays:

• Outstanding debts (credit cards, mortgages, personal loans—usually from estate assets)
• Final income taxes (federal and state)
• Estate taxes (if the estate is large enough to trigger them)
• Probate costs and attorney fees

Debts get paid from estate assets before beneficiaries receive their inheritance. This is a mandatory legal order of priority.

7. Distribute the remaining assets

After debts and taxes are paid, you distribute what's left according to the will. This means:

• Selling assets if needed to divide them fairly
• Transferring titles
• Creating separate accounts
• Documenting each distribution

This isn't instant—it typically comes 12-24 months after filing.

8. File final accounting

You must document everything you've done: all receipts, all payments, all distributions. This accounting is filed with the court and beneficiaries. It's your record that you did the job properly.

The Things You DON'T Have To Do (But Might Want To)

• Act as personal financial advisor (unless specifically named)
• Manage investments (unless qualified or specifically required)
• Make major life decisions on behalf of beneficiaries
• Sign contracts that weren't pre-approved
• Act as therapist or family mediator

You're the executor of the estate, not the executor of their lives.

Part 3: The Probate Timeline

Timelines vary by state, but here's the general roadmap:

First 30 Days: The Urgent Period

Days 1-7: Immediate Actions

• Obtain multiple death certificates (get at least 15 copies)
• Locate the will and any related documents
• Notify family members and key contacts
• Secure physical assets (home, valuables)
• Review if professional executor support is needed

Days 8-30: Initial Setup

• Hire a probate attorney (if you haven't)
• Notify banks, insurance companies, and financial institutions
• Obtain tax ID number (EIN) for the estate
• Open estate bank account
• Stop or redirect mail
• Begin gathering financial documents

30-60 Days: Filing Phase

File petition for probate with:

• Will
• Death certificate
• Proposed inventory
• List of beneficiaries and heirs

Court sends notices to:

• All beneficiaries
• Known creditors
• Newspaper (legal notice)

You create:

• Inventory of all assets
• Preliminary appraisals for real estate
• Summary of known debts

60-120 Days: Creditor Notification Period

All states have a "claims period"—typically 4-6 months—where creditors can file claims against the estate.

During this time:

• You're not distributing assets yet (they might need to pay claims)
• Creditors submit bills
• You evaluate and pay legitimate claims
• You dispute or reject illegitimate claims

This period is a feature, not a bug. It prevents surprises later.

4-12 Months: Settlement Phase

• Estate debts are paid
• Final income taxes are filed (1040 for deceased)
• Estate tax return is filed if needed (Form 706 for large estates)
• Real estate is sold if necessary
• Accounts are closed

This is the longest phase because you're waiting for tax approvals, real estate sales, and appraisals to finalize.

12-24 Months: Final Distribution

When court approval is received:

• Final accounting is filed
• Assets are distributed
• Beneficiaries sign release documents
• Estate is officially closed

Total Timeline: 9-24 Months (18 months average)

This varies wildly based on:

• State (California is notoriously slow; some states are faster)
• Whether the will is contested
• Complexity of the estate
• Whether real estate needs to be sold
• IRS delays on tax clearance

Simple estates with no real estate might close in 9 months. Large, complex estates with multiple properties can easily take 24+ months.

Part 4: Executor Responsibilities by Timeline

Weeks 1-2: Immediate Decisions

Decision: Will you need an attorney?

For simple estates (no real estate, no complexity, everyone agrees): maybe not.

For anything beyond that: yes. A $300-500 investment in a probate attorney prevents much more expensive mistakes.

Decision: Can you do this alone, or do you need help?

Co-executors, professional executors, or attorney support are options.

Decision: Will the estate need professional management?

For real estate, complicated finances, or family conflict: consider hiring a fiduciary or property manager.

Weeks 2-4: The Admin Blitz

• Gather all financial documents
• Create a master spreadsheet of assets, debts, and contacts
• Open estate bank account
• File tax ID application
• Send notification letters to beneficiaries
• Begin asset valuation process
• Continue creditor notifications

Months 1-3: Court Filing and Probate Opening

• File will with court
• Create formal inventory
• Provide accounting to beneficiaries
• Continue paying bills from estate account
• Get property appraisals underway
• Handle creditor claims as they come in

Months 3-6: Creditor Claims Period Ends

• Evaluate all submitted creditor claims
• Make final decisions on which to pay
• Pay estate debts
• Begin tax preparation
• Address any will contests (hopefully none)
• Consider real estate sales if necessary

Months 6-12: Tax and Accounting Finalization

• File final income tax return for deceased (1040)
• File estate tax return if needed (Form 706)
• Obtain tax clearance letter
• Finalize real estate sales or transfers
• Close estate bank accounts
• Prepare final accounting

Months 12+: Final Distribution

• Get court approval for final distribution
• Distribute assets to beneficiaries
• Obtain beneficiary signatures on releases
• File final accounting with court
• Close estate

Part 5: Common Mistakes Executors Make

Learn from others' errors. These are the costly and time-consuming mistakes that happen repeatedly.

Mistake 1: Starting Without Understanding the Estate

You inherit chaos. First, there's an estate discovery phase. You must:

• Find all assets
• Find all debts
• Understand the tax situation
• Know what requires probate and what doesn't

Diving in without this knowledge means you'll do things twice.

Prevention: Spend weeks 1-4 just gathering information. Don't file anything until you have a complete picture.

Mistake 2: Not Getting an Attorney When You Should

"I'll save money and do this myself" is the refrain of executors who end up paying significantly more.

Probate is highly procedural. Mistakes are expensive:

• Missing filing deadlines = probate delays
• Improper inventory = court rejection and refiling
• Wrong notification = will contests
• Improper distributions = liability for the executor personally

Prevention: For any estate with real estate, significant assets, or any complexity, hire an attorney for at least the filing and distribution phases. It's not optional; it's insurance.

Mistake 3: Paying Yourself Too Much (or Not At All)

You're entitled to reasonable compensation (typically 1-5% of the estate, depending on state law). Some executors:

• Take nothing (noble but not required)
• Take too much (risking objection from beneficiaries)
• Don't understand what's reasonable

Prevention: Discuss compensation with your attorney upfront. Document your time. It's not greed—it's fair compensation for significant work.

Mistake 4: Distributing Assets Too Quickly

The second someone asks for their inheritance, you might feel pressure to distribute. Resist this.

Assets must be distributed only after:

• Creditor claims period ends
• Taxes are finalized
• Court approval is obtained
• All estate debts are paid

Distributing early means you might not have enough to cover taxes or creditor claims, and beneficiaries might have to return money.

Prevention: Explain to beneficiaries that distributions come after a specific date. Show them the timeline. This is legal, not personal.

Mistake 5: Mixing Personal and Estate Finances

You must keep your personal finances separate from the estate.

Using an estate credit card for personal expenses, or vice versa, creates:

• Tax complications
• Liability issues
• Audit risk
• Beneficiary disputes

Prevention: Open an estate bank account immediately. All estate money goes there. All estate bills are paid from there. Your personal finances stay personal.

Mistake 6: Ignoring the Property

Real estate requires maintenance, insurance, and taxes throughout probate. Letting a house sit empty:

• Voids insurance coverage
• Creates tax penalties
• Reduces property value (vandalism, deterioration)
• Creates liability if someone is injured on the property

Prevention: Immediately secure property. Maintain insurance. Pay property taxes from estate funds. If it's a long probate, consider renting it or selling it.

Mistake 7: Not Communicating With Beneficiaries

Radio silence from the executor breeds anxiety and drama. Beneficiaries assume problems are being hidden.

Prevention: Communicate regularly. Share the timeline. Explain why distributions aren't happening yet. Transparency builds trust.

Mistake 8: Signing Documents Without Reading Them

Banks, real estate agents, and other parties will present documents for your signature. Not all are appropriate for an executor to sign.

You should not sign:

• Anything outside the scope of your executor duties
• Contracts you don't understand
• Documents that create personal liability
• Anything that benefits you at estate expense

Prevention: Read everything. When in doubt, ask your attorney. Don't be bullied into signing by "just being a formality."

Mistake 9: Failing to File Required Tax Returns

The estate must file:

• Final income tax return for the deceased (Form 1040)
• Estate income tax return (Form 1041) if the estate generates income
• Estate tax return (Form 706) if the estate exceeds federal exemption threshold

Missing these deadlines creates:

• IRS penalties
• Audit risk
• Inability to get tax clearance

Prevention: Work with a CPA or tax attorney. These aren't optional. They're legal requirements with hard deadlines.

Mistake 10: Not Understanding State Laws

Probate rules vary significantly by state:

• Timeline requirements
• Notification procedures
• Executor compensation
• Asset exemptions
• Tax requirements

What works in California might fail in Texas.

Prevention: Hire an attorney licensed in the state where probate is filed. Laws are not one-size-fits-all.

Part 6: Special Situations

Multiple Properties in Different States

If the deceased owned real estate in multiple states, you might need to file ancillary probate (simplified probate) in each state. This complicates things significantly.

Action: Consult with an attorney immediately if out-of-state property is involved.

A Will That's Contested

If someone believes they should have been included in the will, they can contest it. This:

• Freezes distributions
• Requires court action
• Dramatically extends timeline
• Increases costs

Action: Don't fight a will contest without legal representation. This requires litigation skills, not just estate knowledge.

A Will Doesn't Exist (Intestate Succession)

If there's no will, state law determines who inherits (spouse, then children, then parents, etc.). You still need to probate—the court just appoints someone and follows state succession rules.

Action: This is actually more complex, not simpler. You definitely need an attorney.

Significant Estate Taxes

For estates over roughly $13.61 million (2024), federal estate taxes apply. Many states have lower thresholds for state estate tax.

Action: If estate size might trigger taxes, hire a tax attorney. Tax planning at this stage can save beneficiaries tens of thousands.

A Blended Family (Multiple Sets of Heirs)

Blended families create complexity. The will specifies who inherits, but emotions run high.

Action: Document everything. Communicate clearly. If major conflict emerges, consider mediation before litigation.

A Minor Inheriting Assets

If a beneficiary is under 18, you can't simply give them $500,000. The court might require:

• Guardianship
• Trusts (often specified in the will)
• Blocked accounts

Action: Work with your attorney to set up appropriate legal structures for minor beneficiaries.

Part 7: State-Specific Considerations

Probate varies significantly by state. Here are key variables:

Timeline Differences

• Fastest states: Tennessee, Florida (can close in 6-9 months in simple cases)
• Slowest states: California, New York (often 18+ months)

This is largely due to court schedules and procedural requirements.

Fee Structures

Some states allow attorney fees to be "reasonable" (negotiated). Others have statutory fees based on asset value.

Executor compensation also varies:

• Some states allow 2-5% of estate value
• Others require beneficiary approval
• Some allow hourly compensation for complex work

Simplified/Summary Probate

Most states offer simplified probate for small estates (typically under $75,000-100,000, varies by state).

This can be done without attorneys and takes weeks instead of months. If your estate qualifies, take it.

No-Contest Clauses

Many wills include language that says anyone contesting the will forfeits their inheritance. This discourages frivolous contests, though not all states enforce them.

Part 8: Tools and Resources

Documents You'll Need to Gather

• Death certificate (multiple certified copies)
• Will and any codicils
• Previous tax returns
• Financial statements from all institutions
• Property deeds
• Life insurance policies
• Investment account statements
• Mortgage and loan documents
• Healthcare directives
• Power of attorney documents

Professional Help You Might Hire

• Probate attorney: Essential in most cases ($2,000-10,000 depending on complexity)
• CPA or tax attorney: Essential for tax filings ($500-5,000)
• Real estate appraiser: Required if property needs to be valued ($300-1,000 per property)
• Financial advisor: Optional but helpful for complex investments
• Property manager: Optional if real estate needs maintenance during probate
• Professional executor: For very complex estates (available through banks and companies)

Online Tools and Resources

• Your state bar association website (find attorney referrals)
• IRS website (tax forms and deadlines)
• Your state's court website (filing procedures and requirements)
• Estate management apps (to organize documents)
• HeirPortal (to communicate with family about probate status)

Legal Forms and Checklists

Most state court systems provide free probate forms. However, they're often:

• Generic (don't fit your specific situation)
• Difficult to understand
• Missing procedural nuances

An attorney can fill out state forms correctly more cheaply than you figuring them out wrong.

Part 9: Executor Checklist Summary

Before You File (Week 1-4)

• [ ] Obtain multiple death certificates
• [ ] Locate original will and codicils
• [ ] Identify all assets and debts
• [ ] Locate all financial statements
• [ ] Decide if you need attorney
• [ ] Gather family contact information
• [ ] Secure physical assets
• [ ] Review state probate requirements

Filing Phase (Month 1-2)

• [ ] Hire attorney (if needed)
• [ ] Apply for estate tax ID
• [ ] Open estate bank account
• [ ] Create complete inventory of assets
• [ ] Get property appraisals if needed
• [ ] File petition with probate court
• [ ] Send notifications to beneficiaries
• [ ] Notify newspapers for creditor notice

Settlement Phase (Month 2-12)

• [ ] Accept/reject creditor claims
• [ ] Pay legitimate estate debts
• [ ] File final income tax return
• [ ] File estate tax return (if applicable)
• [ ] Handle will contests (if any)
• [ ] Obtain tax clearance
• [ ] Sell real estate (if necessary)
• [ ] Document all actions taken

Distribution Phase (Month 12+)

• [ ] Prepare final accounting
• [ ] Obtain court approval
• [ ] Distribute assets per will
• [ ] Collect beneficiary signatures
• [ ] File final report with court
• [ ] Close estate accounts
• [ ] Keep final records for 7 years

FAQ

How much does probate cost?

Typical costs: $2,000-10,000 for attorney, plus court filing fees ($300-1,000), appraisals ($500-2,000+), and accounting ($500-2,000). For complex estates or real estate, costs can exceed $50,000.

The alternative—making mistakes without professional help—often costs more.

Can I avoid probate?

Partially. Assets with designated beneficiaries (life insurance, retirement accounts), joint property, and trusts bypass probate. But assets in the sole name of the deceased must go through probate.

Planning during life (trusts, joint titling) can reduce probate, but it's hard to avoid entirely.

What if I don't want to be executor?

You can decline the role. Tell the court before probate opens. Then someone else (often specified in the will, or chosen by beneficiaries/court) becomes executor.

You can also resign later, but this creates delays and complications. Better to decline upfront.

How long does probate actually take?

Simple estates with no real estate: 9-12 months Average estates: 12-18 months Complex estates with litigation: 24+ months

The timeline includes mandatory waiting periods that you can't speed up.

Do I have to probate in the state where the person died?

Probate happens in the state where the person had their primary residence. If they own property in other states, you file ancillary probate in those states too.

What if beneficiaries disagree with my decisions?

They can object in court. This is why documentation is critical. If you've acted within the law and the will, beneficiary disagreement usually doesn't prevail.

Keep records of every decision and the reasoning behind it.

Can I charge the family for my work as executor?

Yes. Executor compensation (typically 1-5% of estate, varies by state) comes from estate funds, not from beneficiaries' pockets. It's separate from attorney or professional fees.

What happens if I make a mistake as executor?

You might be liable personally. This is why:

• Professional help matters
• Documentation matters
• Following procedures matters

Executor liability insurance exists and is recommended for large estates.

How do I handle a house that needs to be maintained during probate?

You maintain it from estate funds. This is your legal duty. Homes need:

• Insurance (critical—liability and property)
• Property tax payments
• Basic maintenance (so it doesn't deteriorate)
• If unoccupied: possible security, winterization, utilities

If the maintenance is expensive, you might consider renting it or selling it during probate.

What records should I keep?

Keep everything for 7 years minimum:

• All receipts and invoices
• Bank statements
• Tax returns
• Court documents
• Beneficiary notifications
• Distribution documentation
• Attorney invoices
• Appraisal reports

These protect you if disputes arise or the IRS has questions.