Settling an Estate
Reviewed by DocDraft Legal Team · United States · Last updated August 27, 2026
Settling an estate in the United States is almost entirely a matter of state law. There is no federal probate court and no national probate procedure, so the court that hears the case, the dollar thresholds that decide how much process is required, and the deadlines that bind the personal representative all come from the state where the person died. Even the name of the court changes: New York and New Jersey use a Surrogate's Court, Pennsylvania and Maryland use an Orphans' Court, many states use a Probate Court, and others send estates to a general jurisdiction trial court. This national guide explains the framework every state shares, the three administration tracks most states offer, and the small number of genuinely federal rules that apply on top. For the thresholds and deadlines that actually govern a case, use the state guide.
Find out where you stand — what state are you in?
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Is probate always required when someone dies?
No. Probate governs assets that pass under a will or by intestate succession. Property held in joint tenancy, assets with a named beneficiary such as retirement accounts and life insurance, and property already in a living trust pass outside probate. Many estates hold only non-probate assets and never open a case at all.
Which court handles probate in the United States?
There is no federal probate court. Each state assigns estates to a court of its own choosing, and the name varies. New York and New Jersey use a Surrogate's Court, Pennsylvania and Maryland use an Orphans' Court, states like Ohio, Georgia, and Michigan use a Probate Court, and Florida and California route estates to a general trial court.
What is a small estate procedure?
Almost every state offers a shortcut for modest estates: an affidavit or a simplified petition that transfers property without full administration. The dollar limits differ enormously between states, and many of these procedures exclude real estate entirely, which changes the answer for anyone who owned a home.
Does the federal estate tax apply to most estates?
No. The federal estate tax reaches only very large estates. For deaths in 2026 the basic exclusion amount is $15 million per person, so a Form 706 return is required only above that figure or when a surviving spouse elects portability. Several states impose their own separate estate or inheritance tax at far lower thresholds.
Why probate looks completely different from one state to the next
The single most useful thing to understand about American probate is that there is no national version of it. Congress has never created a federal probate court, so estate administration is left to the states, and the states diverge at nearly every decision point. They diverge on the name and level of the court, on whether a personal representative can act freely or must return to a judge for approval at each step, on how long creditors have to come forward, and on the dollar line that separates a simple affidavit from a full court case. Those small estate lines are not close to one another: New York caps its voluntary administration procedure at $50,000 of personal property under SCPA 1301, Texas caps its small estate affidavit at $75,000 excluding homestead and exempt property under Estates Code Chapter 205, and California allows collection of personal property up to $208,850 for deaths on or after April 1, 2025 under Probate Code 13100. Creditor deadlines vary just as sharply, from three months after publication in Georgia to seven months after letters issue in New York. A partial convergence does exist: the Uniform Probate Code, drafted to standardize this area, has been adopted in substantial part by roughly a third of the states and shapes the vocabulary of informal versus formal and supervised versus unsupervised administration in those places. The rest of the country kept its own system. Because of that, the correct next step is always to read the rule for the state where the person was domiciled at death.
Relevant Laws
No federal probate court
Probate is not a federal subject. Congress has never established a federal probate court, and federal courts apply the long standing probate exception that keeps them out of the administration of decedents' estates. Every operative rule about which court hears an estate, what the thresholds are, and how long creditors have comes from state law, which is why the answer changes at the state line.
Uniform Probate Code
The Uniform Probate Code was drafted to standardize estate administration across the states and has been adopted in substantial part by roughly a third of them. In those states it supplies the informal versus formal and supervised versus unsupervised administration framework and a uniform vocabulary for personal representatives. States that did not adopt it retained their own procedures, so the UPC describes a large minority of the country rather than a national rule.
Federal estate tax and IRS Form 706
The federal estate tax is one of the few genuinely national rules in this area, and it reaches very few estates. For deaths in 2026 the basic exclusion amount is $15 million per person, and Form 706 is required only when the gross estate plus adjusted taxable gifts exceeds that figure, or when the estate elects portability of the unused exclusion to a surviving spouse. The return is generally due nine months after death, with an available extension.
State estate and inheritance taxes are separate
A number of states impose an estate tax, an inheritance tax, or in one case both, at exemption levels far below the federal threshold, so an estate can owe nothing federally and still owe a state tax. Pennsylvania's inheritance tax, for example, is charged to the recipient at rates that turn on the relationship to the decedent and becomes delinquent nine months after death. Check the state revenue department rather than assuming the federal exclusion controls.
Regional Variances
Small estate thresholds are not close to one another
California
Collection of personal property by affidavit under Probate Code 13100 is available up to $208,850 for deaths on or after April 1, 2025, after a 40 day wait. Real property cannot be transferred by that affidavit; it is handled separately, and since April 1, 2025 a principal residence valued under $750,000 may move through the streamlined petition in Probate Code 13151.
Texas
The small estate affidavit under Estates Code Chapter 205 is capped at $75,000 excluding homestead and exempt property, requires a 30 day wait, and is available only where the decedent died without a will. Texas also offers muniment of title, an unusual procedure that admits a will to probate without appointing any representative at all.
New York
Voluntary administration under SCPA 1301 applies where personal property is $50,000 or less, exclusive of property set off under EPTL 5-3.1(a). The filing fee is nominal and no bond is required, but the ceiling is among the lowest in the country, so many ordinary estates fall outside it.
Michigan
Transfer by affidavit under MCL 700.3983 applies where the estate is at or below an inflation adjusted ceiling, roughly $53,000 for deaths in 2026 against a $50,000 statutory base indexed under MCL 700.1210, and it is unavailable if the estate includes any real property.
Creditor claim windows and what starts the clock
Georgia
The personal representative publishes notice within 60 days of qualification, once a week for four weeks. Under OCGA 53-7-41 a creditor who does not give notice of a claim within three months of the last publication loses the right to share equally with creditors of the same priority who were paid first.
Ohio
Ohio measures its period from death rather than from publication or appointment. Under ORC 2117.06 creditors have six months from the date of death to present claims, which means the clock can be well advanced before a representative is even appointed.
New York
SCPA 1802 gives creditors seven months from the issuance of letters, which is why a New York estate rarely closes in under seven months even when it is otherwise simple and uncontested.
Pennsylvania
Advertisement of the grant of letters runs once a week for three successive weeks under 20 Pa.C.S. 3162, and under 20 Pa.C.S. 3532 claims generally expire one year from the first complete advertisement, one of the longest exposure periods in the country.
How much court supervision the representative faces
Uniform Probate Code states
States that adopted the UPC in substantial part distinguish informal from formal proceedings and supervised from unsupervised administration. Unsupervised administration is the working default, letting the representative sell property, pay claims, and distribute without returning to a judge for approval at each step.
Texas independent administration
Texas reaches a similar result by its own route. An independent executor named in the will, or appointed with the consent of the distributees, administers the estate with almost no court involvement after filing the inventory, which is why Texas probate is often faster and cheaper than its reputation suggests.
Supervised administration states
In states that did not adopt the UPC framework, court approval is required at more steps, particularly for selling real property, paying compensation, and making distributions. The process is slower and produces more filings, but the representative is protected by having a judge sign off along the way.
Suggested Compliance Checklist
Confirm the state of domicile and the correct court
Week 1 days after startingDomicile at death, not the place of death or where family lives, sets which state's law applies and which county court takes the filing. Identify the court by its actual state name, whether that is a Surrogate's Court, an Orphans' Court, a Probate Court, or a general trial court division, and check that court's own filing requirements before preparing anything.
Separate probate from non-probate assets
Weeks 1-3 days after startingList every asset with its title and any beneficiary designation. Joint tenancy property, payable on death and transfer on death accounts, retirement plans, life insurance with a living beneficiary, and trust property pass outside probate. Only assets in the decedent's sole name count toward the small estate thresholds, so this step decides which track applies.
Prepare the estate inventory
Weeks 2-6 days after startingMost states require a formal inventory of probate assets with date of death values within a set period after appointment, and appraisals for real property and closely held business interests. Build the inventory early even where the deadline is generous, because the values drive the tax analysis, the accounting, and any dispute over distributions.
Use a small estate affidavit if the estate qualifies
After the state waiting period days after startingIf the probate estate falls under the state ceiling and the state's procedure covers the assets involved, an affidavit can transfer property without opening a case. Confirm the current statutory limit, the mandatory waiting period, and whether real property is excluded, since most affidavit procedures cover personal property only.
Complete creditor notice before distributing anything
Per the state claim period days after startingPublish notice as the state requires and send direct written notice to every creditor that is known or reasonably ascertainable. Diary the closing date of the claim period and do not distribute before it runs. Early distribution is the most common way a personal representative converts an estate debt into personal liability.
| Task | Description | Document | Days after starting |
|---|---|---|---|
| Confirm the state of domicile and the correct court | Domicile at death, not the place of death or where family lives, sets which state's law applies and which county court takes the filing. Identify the court by its actual state name, whether that is a Surrogate's Court, an Orphans' Court, a Probate Court, or a general trial court division, and check that court's own filing requirements before preparing anything. | - | Week 1 |
| Separate probate from non-probate assets | List every asset with its title and any beneficiary designation. Joint tenancy property, payable on death and transfer on death accounts, retirement plans, life insurance with a living beneficiary, and trust property pass outside probate. Only assets in the decedent's sole name count toward the small estate thresholds, so this step decides which track applies. | - | Weeks 1-3 |
| Prepare the estate inventory | Most states require a formal inventory of probate assets with date of death values within a set period after appointment, and appraisals for real property and closely held business interests. Build the inventory early even where the deadline is generous, because the values drive the tax analysis, the accounting, and any dispute over distributions. | asset-inventory | Weeks 2-6 |
| Use a small estate affidavit if the estate qualifies | If the probate estate falls under the state ceiling and the state's procedure covers the assets involved, an affidavit can transfer property without opening a case. Confirm the current statutory limit, the mandatory waiting period, and whether real property is excluded, since most affidavit procedures cover personal property only. | small-estate-affidavit | After the state waiting period |
| Complete creditor notice before distributing anything | Publish notice as the state requires and send direct written notice to every creditor that is known or reasonably ascertainable. Diary the closing date of the claim period and do not distribute before it runs. Early distribution is the most common way a personal representative converts an estate debt into personal liability. | - | Per the state claim period |
Frequently Asked Questions
An executor is not personally liable for the decedent's debts simply by serving. Personal liability arises from the executor's own conduct: distributing assets before the creditor claim period closes, failing to give notice a statute requires, paying lower priority claims ahead of higher priority ones, or mishandling estate property. The protection is procedural, so following the notice and timing rules is what protects the executor.
Costs fall into court filing fees, publication costs, bond premiums where a bond is required, and professional fees. Filing fees are usually modest, though a few states scale them to estate size. The larger variable is compensation: most states allow both the personal representative and the estate attorney reasonable compensation, while a small number set fees as a statutory percentage of the estate, which makes those states meaningfully more expensive for large estates.
The estate is intestate and passes under the state's intestate succession statute, which sets a fixed order of takers, typically the surviving spouse and descendants first, then parents, then siblings and more remote relatives. The court appoints an administrator rather than an executor, usually giving priority to the surviving spouse. Intestacy does not send property to the state unless no relative within the statutory degrees can be found.
Ancillary probate is a secondary proceeding opened in another state because the decedent owned real property there. Real estate is governed by the law of the state where it sits, so a primary probate in the home state cannot by itself transfer an out of state parcel. The ancillary case is usually shorter, since the home state court has already validated the will and appointed the representative.
Yes, in every state, though the mechanism splits. Nine community property states treat most property acquired during the marriage as owned half by each spouse, so only the decedent's half is in the estate. The remaining states give the survivor an elective share, a statutory percentage the survivor may claim instead of what the will provides. Many states also add a homestead right or family allowance on top.
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