What Happens to a Last Will After Death?
The will goes through probate. The executor files with the court, settles debts, and distributes the estate under court supervision. Here's the full process.
The will goes through probate. The executor files with the court, settles debts, and distributes the estate under court supervision. Here's the full process.
The will goes through probate. The executor files with the court, settles debts, and distributes the estate under court supervision. Here's the full process.
When someone dies with a last will, the will goes through probate — a court-supervised process where a judge validates the document, officially appoints the executor, and oversees the settlement of the estate. The executor cannot act until the court grants authority through letters testamentary. Until then, assets are frozen.
Probate is public. The will, the inventory of assets, the list of creditor claims, and the final distribution are all filed with the court and accessible to anyone. The process takes months at a minimum, often longer. Not every estate requires full probate — small estates may qualify for simplified procedures. For families that do go through probate, the combination of delay, cost, and public exposure is the primary reason many estate plans include a trust alongside the will.
Probate follows a court-mandated sequence. Each step requires the executor to petition, wait for approval, and report back to the court. Timelines overlap — the cumulative column shows when each step typically completes from the date of death.
The executor locates the original signed will and files it with the probate court in the county where the deceased lived. The court will require multiple certified death certificates— one for the court filing, and additional copies for banks, insurers, and government agencies. The executor petitions the court for appointment and, once approved, receives letters testamentary — the legal authority to act on behalf of the estate.
The executor notifies all beneficiaries named in the will, all known creditors, and — in most states — publishes a notice in a local newspaper to alert unknown creditors. Creditors then have a statutory window to file claimsagainst the estate — typically 3–6 months, but deadlines vary by state.
The executor identifies and values all estate assets as of the date of death. This includes real property, financial accounts, vehicles, personal property, and business interests. Formal appraisals may be required for real estate and unique assets. The inventory only covers assets the will actually controls— accounts with beneficiary designations, joint property, and trust assets are not part of the probate estate. The inventory is filed with the court and becomes part of the public record.
The executor pays valid creditor claims, funeral expenses, estate administration costs, and files the deceased’s final income tax return. Before any of this, the executor applies for an EIN from the IRS — the estate needs its own tax identification number to open a bank account and file returns. If the estate exceeds the federal or state estate tax exemption, an estate tax return (Form 706) is also required. All payments come from estate assets before any distributions to beneficiaries.
Once the creditor claim period expires and all debts and taxes are paid, the executor petitions the court for authority to distribute the remaining assets. The court reviews the executor’s accounting — including court fees, attorney fees, and administration costs — and, if everything is in order, approves the distribution plan. In some states, executors can self-file probate without an attorney for straightforward estates.
The executor distributes assets to beneficiaries according to the will’s instructions, files a final accounting with the court, and petitions to close the estate. The executor is entitled to compensation for their work— the amount varies by state. The court issues a discharge order releasing the executor from further liability. The probate case is closed.
Probate and trust administration accomplish the same goal — transferring assets to beneficiaries — but differ in time, cost, privacy, and court involvement.
| Probate (Will) | Trust Administration | |
|---|---|---|
| Timeline | 6–18+ months | 4–12 weeks |
| Court involvement | Required at every step | None |
| Public record | Public — anyone can access | Private |
| Cost | Attorney fees + court fees + executor fees | Minimal — no court fees |
| Authority | Delayed — must petition court first | Immediate — trust document is sufficient |
| Multi-state property | Separate probate in each state | One trust covers all states |
| Creditor claim period | 3–6 months (state-mandated) | Varies — no statutory minimum in most states |
| Executor/trustee oversight | Court-supervised accounting | Self-administered with fiduciary duty |
A will directs the probate process; it does not avoid it. For estates with real property, assets in multiple states, or a need for privacy, a revocable trust transfers those assets outside of probate entirely. Check whether a trust fits your situation. Most families with a trust also have a pour-over will as a safety net — it catches anything not transferred into the trust and directs it through probate into the trust.
A will remains essential even with a trust. It is the only document that can name a guardian for minor children. It also serves as the backup plan for any assets that were not properly funded into the trust before death — and for accounts with outdated beneficiary designations that bypass both the will and the trust. How revocable trusts work
Executor duties vary by state — filing deadlines, creditor notice requirements, and court reporting schedules differ depending on where the estate is probated. If you have been named as executor, this checklist walks through each step with state-specific requirements built in. You can also use the full estate settlement plan for a detailed breakdown by state and county.
Answer a few questions to get a personalized checklist for your situation.
This checklist provides general guidance for estate settlement. Requirements vary by state and circumstance. Consult a licensed attorney for legal advice.
Probate takes 6–18 months in most states. Simple estates with no disputes and cooperative beneficiaries can close in 4–6 months in states with streamlined procedures. Contested estates, estates with real property in multiple states, or estates with outstanding creditor claims can take 2+ years.
The executor files the will with probate court, petitions for appointment (letters testamentary), notifies beneficiaries and creditors, inventories all estate assets, pays outstanding debts and taxes, and distributes the remaining assets according to the will. The executor operates under court supervision and must account for every dollar.
A will contest is a legal challenge filed in probate court. Common grounds include lack of testamentary capacity (the testator did not understand what they were signing), undue influence (someone pressured the testator), improper execution (missing witnesses or signatures), and fraud. Contested estates can take years to resolve and significantly reduce the estate through legal fees.
Without a will, the estate passes through intestacy — a statutory formula that distributes assets to the closest living relatives. The court appoints an administrator (instead of an executor chosen by the deceased). The probate process is the same, but the state’s default rules determine who inherits rather than the deceased’s wishes.