How probate is different from state to state

4 min read

Major differences between state probate processes

  • The threshold for when you can bypass full probate varies from under $15,000 to under $160,000.

  • States also differ in what counts toward this limit; real estate counts in some, for example, and not others.

  • Because of deadlines and the complexity of probate processes, probate takes much longer in some states than in others.

  • When avoiding full probate, some states use a summary process, while some use affidavits.

The probate process can be one of the most overwhelming parts of dealing with the death of a loved one. Wading through the legal language and paperwork is arduous, and especially so while you’re in the midst of grief. To make matters even more complex, probate doesn’t have uniform laws that apply from one state to the next.

In most cases, the laws that apply to your loved one’s estate are determined by where they resided, which usually coincides with where they held the majority of their property. That state is where you will file the will and enter probate. 

While there has been some effort to unify the laws and streamline the process, most states still have specific laws around things like when you can avoid full probate, the time frame for filing the will, and even which kinds of property are considered to be part of the estate. 

The size of the estate matters

Whether or not your loved one’s estate needs to go through the full probate process depends largely on a threshold your state has set. For example, in California an estate can be worth over $160,000 and still avoid probate, but in Texas, it can not exceed $75,000. The range for this threshold is large, with some states setting the bar as low as $15,000.

Some states will not require probate at all under certain circumstances, such as a small estate that has no debts and no real estate to be distributed.

To further complicate the matter, some states (like North Carolina) allow their threshold to be bypassed if the whole estate is transferred to a surviving spouse. 

A quick search of your state’s probate laws will reveal the basic information you need. If you aren’t sure if your loved one’s estate needs probate, seek the help of a financial advisor or estate lawyer. 

What counts toward the estate valuation

Typically, solely-owned valuable assets, such as real estate, vehicles, and high-value jewelry or art, as well as debts, taxes, and funeral expenses, are all considered to be a part of the total gross value of an estate. However, not all of these assets and debts will always count toward the assessment of value for the purpose of determining which probate process is necessary.

For example, in Florida, Michigan, and Illinois, the value of real estate does not apply to the value of the estate. In New York, real estate is counted in the gross value, unless it has been bequeathed to immediate family members.

How long it all takes

Another thing that differs in probate laws is how long the process takes, how long you have to start it, and by extension, what it costs. In general, this depends on how complicated the procedures are within the state and how long creditors have to file a claim for any owed debts. 

For example, California has a fairly complicated process that requires creditors to be given up to four months to make claims on an estate. This means the whole probate period can last anywhere from eight months to several years. In contrast, in Massachusetts probate can last as little as a few weeks in uncomplicated circumstances. 

In California, the probate period can last anywhere from eight months to several years.

You’ll also need to know how long you have to file the will with the probate court, which needs to be done regardless of whether the full probate process is necessary. This deadline can range from as short as 10 days to as long as 90 days after your loved one has passed. 

Other differences

There are many more variations in the details and processes of probate, which are dependent on the different procedures followed by each state’s probate court system. If the estate can bypass the full probate process, some states require the executor to follow a summary probate process, in which accountings are presented to the court, while others require beneficiaries to fill out affidavits to claim their bequests in the will. And for full probate, the details, fees, and forms will vary from state to state.

Before you start figuring out whether you want to go through the probate process by yourself, you’ll want to ask yourself how complicated the estate really is. Are there lots of joint ownership properties or properties in different states? Did your loved one leave behind a lot of unfinished business deals in various places? Because the state-by-state laws can further complicate an already complex process, these situations can get tricky. In most cases, but particularly in these, it is recommended that you involve an estate attorney to handle the details and take some of the stress off of you during this difficult time. They’ll take care of notifying creditors, filing forms, and even managing the estate account, which can be a big help if you’re overwhelmed by the process. Whether you choose to hire an attorney or you plan to tackle it alone as an executor, be prepared to have paperwork and responsibility in the back of your mind for a few months. Give yourself the focus and organization you’ll need, but also allow yourself time to breathe—it’s extremely important for processing your feelings during this difficult time ●