Probate Uncertainty and Guidance
Overview
Probate is one of the most confusing and intimidating aspects of settling an estate. The word itself causes anxiety, and for good reason - probate laws are complex, vary significantly by state and even by county, and the consequences of doing it wrong can be serious. Many people facing estate settlement have never dealt with probate before and don't know where to start.
The good news: While probate is complicated, Sunset makes it much simpler. We help you understand whether probate is required in your situation, what type of probate process applies, what documents you need, how to prepare those documents, and where to file them. In many cases, we can generate the exact forms you need, pre-filled with your information, ready for your signature and filing.
The process of determining your probate path depends on multiple factors: the total value of the estate, what types of assets exist, whether there's a will or trust, which state and county govern the estate, who the heirs are, and what the deceased owned. Sunset analyzes all these factors and guides you to the correct probate approach for your specific situation.
Understanding Probate Basics
What probate actually is:
Probate is the legal process of:
Validating a will (if one exists)
Appointing someone with authority to manage the estate
Identifying and inventorying the deceased's assets
Paying debts and taxes
Distributing remaining assets to heirs
Why probate exists:
Protects creditors (ensures debts are paid before distribution)
Protects heirs (prevents unauthorized people from taking assets)
Provides legal authority to access accounts and property
Creates public record of estate settlement
Resolves disputes through court oversight
When probate is required:
Assets titled solely in deceased's name with no beneficiary designation
Real estate without transfer-on-death designation
Bank and investment accounts without payable-on-death beneficiaries
Personal property of significant value
When the total estate value exceeds state thresholds
When probate may NOT be required:
Assets with named beneficiaries (life insurance, retirement accounts)
Assets held in trust
Assets with transfer-on-death or payable-on-death designations
Joint accounts with right of survivorship
Very small estates below state thresholds
Community property passing to surviving spouse (in some states)
Why Probate Creates Uncertainty
Probate is confusing because:
Every state is different: California probate looks nothing like Texas probate. Florida has different rules than New York. Even neighboring states have completely different processes, forms, thresholds, and requirements.
Every county can be different: Within the same state, Los Angeles County probate court may have different local rules, forms, and procedures than San Diego County. All 58 California counties follow the same state probate code, but each has unique local requirements.
Thresholds and rules are complex:
Small estate threshold in California: $184,500
Small estate threshold in Texas: $75,000
Small estate threshold in Florida: $75,000
These thresholds change periodically and have exceptions
Multiple probate paths exist:
Formal probate (full court supervision)
Summary probate (simplified for smaller estates)
Small estate affidavit (sworn statement, no court)
Spousal property petition (surviving spouse only)
Muniment of title (Texas will validation without administration)
Affidavit of heirship (when no will exists)
Asset types matter:
Real property often requires different handling than personal property
Community property states have special rules for surviving spouses
Retirement accounts follow different rules than bank accounts
Timing and deadlines vary:
Some states require filing within 30 days
Others allow 3-4 years before probate becomes difficult
Creditor claim periods vary by state
No wonder people are uncertain about what to do!
How Sunset Simplifies Probate
Sunset removes the uncertainty through a systematic approach:
Step 1: We assess your specific situation
Based on information you provide during signup and account discovery results, Sunset evaluates:
What state governs the estate: Usually the state where the deceased lived at death, but can be complicated if they owned property in multiple states.
Total estate value: Sum of all probate assets (not including beneficiary-designated accounts that bypass probate).
Asset types involved: Real estate, bank accounts, investment accounts, personal property - each may have different implications.
Whether a will or trust exists:
Will: Requires probate (usually)
Trust: May avoid probate (if properly funded)
No will: Intestacy, requires probate
Who the heirs are:
Surviving spouse only: Often qualifies for simplified procedures
Multiple children: Standard probate process
Complex family situations: May need formal probate
Step 2: We recommend the appropriate probate path
Based on the assessment, Sunset identifies which probate approach applies:
No probate needed:
When this applies:
All assets have beneficiary designations
Everything is in a properly funded trust
Only joint accounts with right of survivorship
Estate consists entirely of non-probate assets
What you do:
File beneficiary claims directly with institutions
Provide death certificate and proof of identity
Receive distributions without court involvement
Example: Father had $200,000 total in accounts, but $150,000 was in a 401(k) with named beneficiaries, $30,000 was in a joint bank account with surviving spouse, and $20,000 was in a payable-on-death savings account. Nothing requires probate - all assets pass outside probate process.
Small estate affidavit:
When this applies:
Total probate assets below state threshold
No real property, or real property under threshold
Required waiting period has passed (varies by state, typically 30-45 days after death)
All heirs agree on distribution
What you do:
Complete small estate affidavit form
Sign under penalty of perjury
Present affidavit to financial institutions
Institutions release funds based on affidavit alone, no court filing needed
Advantages:
No court filing required
No attorney needed
No filing fees
Fast (can be done in days)
Simple one-page form in most states
Example: Estate in Illinois with $45,000 in bank accounts and no real estate. Illinois small estate threshold is $100,000. 45 days after death, heir files small estate affidavit with bank. Bank releases funds within 2 weeks. Total cost: $0. Total time: 2-3 weeks.
Spousal property petition (California and some other states):
When this applies:
Surviving spouse exists
Assets are community property or pass to spouse
Want court confirmation of spouse's ownership
What you do:
File spousal property petition with probate court
Attend brief court hearing (often waived)
Receive court order confirming property belongs to spouse
Use court order to transfer assets
Advantages:
Simpler and faster than full probate
Lower filing fees
Less paperwork than full estate administration
Spouse gets clear title to assets
Example: California estate with $400,000 in assets, all community property, surviving spouse. Sunset helped prepare spousal property petition, spouse filed with Los Angeles County probate court, court hearing was 6 weeks later (10 minutes long), court order issued confirming spouse's ownership of all community property. Total time: 2 months. Total cost: $435 filing fee.
Summary probate (simplified administration):
When this applies:
Estate value above small estate threshold but below formal probate threshold
State offers simplified probate procedures
Estate is relatively straightforward
What you do:
File petition for summary administration
Provide will (if exists) and death certificate
Court appoints personal representative with streamlined process
File simplified inventory and accounting
Distribute assets with less court oversight
Advantages:
Less complex than full probate
Reduced paperwork
Lower attorney fees (if using attorney)
Faster timeline than formal probate
Example: Texas estate with $125,000 in assets (above $75,000 small estate threshold). Independent administration under Texas probate code. Sunset helped prepare application for independent administration, executor filed with Dallas County probate court, court issued letters testamentary after brief hearing, executor administered estate with minimal court supervision. Total time: 4 months.
Formal probate (full administration):
When this applies:
Large estate exceeding simplified thresholds
Complex assets (multiple properties, business interests, etc.)
Disputes among heirs
Creditor issues
Court supervision desired or required
What you do:
File petition to open probate
Notice to heirs and creditors
Court hearing to appoint personal representative
Detailed inventory and appraisal
Regular accountings to court
Petition for final distribution
Court approval of distributions
Advantages:
Court oversight protects executor from claims
Clear legal authority for complex situations
Formal process resolves disputes
Complete documentation
Disadvantages:
Lengthy (often 9-18 months)
Expensive (attorney fees, court costs, appraisal fees)
Complex paperwork and procedures
Multiple court hearings
Example: California estate with $800,000 including house and investment accounts. Sunset helped prepare petition for probate, family hired attorney to handle court appearances, formal probate process took 14 months. House was sold, accounts closed, debts paid, final distribution to three children. Total cost: $12,000 in attorney fees, $1,500 in court and appraisal fees.
Step 3: We generate the necessary documents
Once Sunset identifies your probate path, we prepare the specific forms you need:
For small estate affidavits:
State-specific affidavit form
Pre-filled with deceased's information
Lists assets and their values
Names heirs and their shares
Sworn statement of entitlement
Ready for your signature and notarization
For spousal property petitions:
Petition form for spousal property determination
Death certificate declaration
Community property schedule
Notice of hearing (once court sets date)
Proposed order for judge's signature
For summary or formal probate:
Petition to open probate
Death certificate filing cover sheet
Will lodging (if will exists)
Notice to heirs
Notice to creditors (publication form)
Letters testamentary/administration request
Inventory and appraisal forms
Duty and authority of personal representative
Creditor claim handling forms
Petition for final distribution
All forms are:
Current versions for your specific state and county
Pre-filled with information you provided
Formatted correctly for court filing
Include filing instructions
Reference local court rules and procedures
Step 4: We provide filing guidance
Sunset doesn't file documents on your behalf (we're not attorneys), but we provide detailed instructions:
What to file:
Complete list of documents in correct order
Number of copies required by your county
Which documents need original signatures vs. copies
Where to file:
Specific probate court location (address, hours, department)
Online filing options if your county offers them
Mail filing instructions if applicable
How to file:
Step-by-step process (go to clerk's office, submit documents, pay fees)
What to say when filing ("I'd like to file a petition for probate")
What to expect (clerk will check documents, stamp filed copies, provide case number)
What it costs:
Exact filing fees for your county
Additional costs (certified copies, publication fees, etc.)
Payment methods accepted (check, cash, credit card)
What happens next:
Court will set hearing date (typically 4-8 weeks out)
You'll receive notice of hearing in the mail
What to expect at the hearing
How to prepare for court appearance
Timeline expectations:
When letters of appointment will be issued
How long the overall process typically takes in your jurisdiction
What happens after court issues your authority documents
Factors That Determine Your Probate Path
Sunset evaluates multiple factors to recommend the right approach:
Total Estate Value
This is the most critical factor:
How we calculate it:
Sum all assets titled solely in deceased's name
Include bank accounts, investment accounts, real estate, vehicles, personal property
Exclude beneficiary-designated accounts (life insurance, retirement accounts with beneficiaries)
Exclude joint accounts with right of survivorship
Exclude trust assets
Why it matters: Each state has thresholds determining which probate process applies.
Example calculations:
Scenario 1 - Below small estate threshold:
Checking account: $15,000
Savings account: $8,000
Vehicle: $12,000
Personal property: $5,000
Total probate estate: $40,000
If state threshold is $75,000, this qualifies for small estate affidavit.
Scenario 2 - Above small estate threshold:
Checking account: $25,000
Investment account: $80,000
House (deceased's half of community property): $200,000
Total probate estate: $305,000
Exceeds most small estate thresholds, requires formal probate or spousal petition.
Scenario 3 - Large estate but most bypasses probate:
Checking account: $10,000
401(k) with named beneficiaries: $300,000 (bypasses probate)
Life insurance with named beneficiaries: $500,000 (bypasses probate)
Total probate estate: $10,000 (only the checking account)
Qualifies for small estate despite large total asset value, because most assets bypass probate.
State Law
Your state determines which probate procedures are available:
Community property states (9 states): Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin
Special rules:
Surviving spouse may have simplified procedures
Half of community property automatically belongs to surviving spouse
Separate property requires different handling
Common law property states (remaining 41 states): Different ownership rules, often more formal probate required.
Unique state procedures:
Texas:
Independent administration (executor operates with minimal court supervision)
Muniment of title (proves will without full administration)
Affidavit of heirship (when no will)
California:
Set Estate of less than $184,500 bypasses probate
Spousal property petition avoids probate for community property
Extensive probate code with detailed procedures
Florida:
Summary administration for estates under $75,000
Formal administration for larger estates
Disposition without administration for very small estates
Sunset knows these state-specific options and directs you appropriately.
County Rules
Even within the same state, counties have different requirements:
Local forms: Some counties require specific local forms in addition to state forms.
Example: Los Angeles County has its own cover sheets, local rules about page formatting, and specific procedures for filing. San Diego County has different local forms.
Filing procedures:
Some counties accept online filing
Others require in-person filing
Some accept mail filing
Filing hours vary
Court calendars:
Some counties set probate hearings weekly
Others monthly
Wait times vary from 2 weeks to 3 months
Fees: Even within the same state, filing fees can vary by county.
Sunset's probate document generator accounts for these county-specific variations.
Presence of Will or Trust
Will exists:
Must be lodged with probate court (even if probate not required)
Will determines who inherits
Named executor has priority for appointment
Requires probate (with limited exceptions)
Trust exists:
Trust assets avoid probate if properly funded
Trustee has authority without court involvement
Only non-trust assets need probate
Can significantly reduce probate estate size
No will (intestacy):
State law determines heirs
Court appoints administrator
Usually requires probate (unless estate very small)
May have priority list for who can serve as administrator
Example: Father had $500,000 in assets. $400,000 was in revocable trust, $100,000 in bank accounts not in trust. Only the $100,000 requires probate. If state threshold is $150,000, may qualify for summary procedures despite large total estate.
Family Situation
Surviving spouse only, no children: Often qualifies for simplified spousal procedures in community property states.
Surviving spouse with children (all from this marriage): Standard probate, but may have simplified options in some states.
Multiple adult children, no surviving spouse: Standard probate unless estate qualifies for small estate procedures.
Minor children: Requires court oversight, formal probate usually necessary, guardianship considerations.
Blended family (children from multiple marriages): Often requires formal probate to ensure proper distribution and documentation.
Complex family (estranged heirs, disputed relationships): Formal probate provides court supervision to resolve disputes.
Types of Assets
Real estate:
Almost always requires some form of probate or court documentation
Cannot transfer title without legal authority
Even small estates may need probate if real property exists
Transfer-on-death deeds can avoid probate (available in some states)
Bank and investment accounts:
Can often be handled with small estate affidavit if below threshold
Payable-on-death designations avoid probate
Joint accounts with right of survivorship avoid probate
Retirement accounts:
Usually have beneficiary designations
Bypass probate when beneficiaries are named
Require probate only if "estate" is named as beneficiary
Life insurance:
Named beneficiaries bypass probate
Estate as beneficiary requires probate
Vehicles:
Most states have simplified procedures for transferring vehicles
Often don't count toward probate threshold
DMV forms instead of probate court
Personal property:
Furniture, jewelry, clothing, household items
Usually transferred without formal probate if estate is small
May require appraisal for larger estates
Sunset's Probate Guidance Process
Here's how Sunset guides you through probate uncertainty:
Phase 1: Information Gathering
During signup, we collect:
State where deceased lived
Whether will or trust exists
Family situation (spouse, children, etc.)
Known assets and approximate values
Phase 2: Account Discovery
Our search reveals:
Bank and investment accounts
Retirement accounts (with beneficiary status)
Life insurance policies
More complete picture of estate value
Phase 3: Probate Assessment
Sunset analyzes all factors:
Calculates total probate estate (excluding non-probate assets)
Compares to state thresholds
Evaluates family situation
Considers asset types
Reviews will or trust provisions
Phase 4: Recommendation
We tell you:
Whether probate is required
Which type of probate procedure applies
Estimated timeline and costs
What documents you'll need
Where and how to file
Phase 5: Document Preparation
If probate is needed, we:
Generate state and county-specific forms
Pre-fill with your information
Organize in proper filing order
Provide signing instructions
Phase 6: Filing Guidance
We provide:
Step-by-step filing instructions
Court location and contact information
Expected fees and timeline
What happens after filing
Phase 7: Ongoing Support
As you progress through probate:
Answer questions about the process
Prepare additional forms as needed (inventory, accounting, final distribution)
Clarify court requirements
Troubleshoot issues that arise
Common Probate Uncertainties Resolved
"Do I need probate at all?"
Sunset determines this by:
Calculating your probate estate value (excluding non-probate assets)
Comparing to your state's thresholds
Evaluating whether simplified procedures apply
Checking if all assets have beneficiaries or are in trust
Answer might be:
"No probate needed - all assets bypass probate through beneficiary designations"
"Small estate affidavit sufficient - estate is under state threshold"
"Formal probate required - estate exceeds thresholds and includes real property"
"Which state's probate law applies?"
Usually where deceased was domiciled (permanent home) at death, but:
Real estate requires probate in the state where property is located
If deceased lived in multiple states or moved recently, may be unclear
"Domicile" is legal determination based on multiple factors
Sunset helps identify which state governs based on:
Where deceased had driver's license
Where they voted
Where they filed taxes
Where they maintained primary residence
Their stated intent
"What's the threshold in my state?"
Each state is different, and thresholds change periodically. Sunset maintains current threshold information for all states:
Examples of state thresholds (as of 2024-2025):
California: $184,500
Texas: $75,000
Florida: $75,000
New York: $50,000 (simplified procedure)
Illinois: $100,000
Arizona: $100,000
We tell you your state's current threshold and whether your estate is above or below it.
"How long will probate take?"
Depends on type of probate and your county:
Small estate affidavit: 2-4 weeks
Complete affidavit
Present to institutions
Receive funds
Spousal property petition: 2-3 months
File petition
Wait for hearing date (4-8 weeks)
Attend brief hearing
Receive court order
Summary probate: 4-8 months
File petition
Court appointment (4-8 weeks)
Administer estate
File final accounting
Court approval
Formal probate: 9-18 months
Initial filing and hearing (2-3 months)
Creditor claim period (4-6 months)
Asset management and sale
Final accounting and distribution (3-6 months)
Sunset provides specific timeline estimates for your jurisdiction.
"Do I need an attorney?"
Depends on complexity:
Probably don't need attorney:
Small estate affidavit (very simple)
Small estate with no disputes
Straightforward asset distribution
May want attorney for guidance:
Summary probate (moderately complex)
First time dealing with probate
Want assurance you're doing it right
Probably need attorney:
Formal probate (complex procedures)
Estate with real property
Disputes among heirs
Large estate (over $500,000)
Business interests involved
Estate tax considerations
Definitely need attorney:
Will contest or disputes
Complex family situations
Creditor disputes
Litigation anticipated
Sunset prepares the forms regardless, which can reduce attorney time and cost if you do use one. Some families use Sunset's forms as "draft" and have attorney review before filing.
"What are the filing fees?"
Varies significantly by state and county:
Small estate affidavit: Usually $0 (no court filing)
Summary probate: $200-$500 depending on county
Formal probate:
Filing fee: $300-$500
Publication fee (creditor notice): $150-$300
Certified copies: $25-$50
Total initial costs: $500-$1,000
Additional costs that may apply:
Attorney fees (if using attorney): $3,000-$15,000+ depending on complexity
Appraisal fees (if real property): $300-$800
Accounting fees (if complex estate): $500-$2,000
Bond premium (if court requires): Varies by estate size
Sunset provides specific fee information for your county.
Special Situations and How Sunset Handles Them
Real property in multiple states:
Example: Deceased lived in California, owned rental property in Arizona.
How it works:
Primary probate in California (domicile state)
Ancillary probate in Arizona (for the property located there)
Two separate probate proceedings
California personal representative coordinates both
Sunset helps with:
Identifying need for ancillary probate
Preparing forms for both states
Explaining coordination between proceedings
Trust exists but wasn't fully funded:
Example: Deceased created trust but forgot to transfer bank accounts into trust name.
How it works:
Trust assets avoid probate (whatever was properly titled in trust name)
Non-trust assets require probate
May be able to use small estate procedures for non-trust assets
Or file probate and "pour over" assets into trust
Sunset helps:
Identify which assets are in trust vs. not
Calculate probate estate (only non-trust assets)
Recommend appropriate probate procedure
Prepare pour-over documents if needed
Recent move to new state:
Example: Deceased lived in Ohio for 60 years, moved to Florida 6 months before death.
How it works:
Domicile determination required
Factors: driver's license, voting registration, intent, where belongings are
May need to establish Florida domicile for probate purposes
Or handle in Ohio if domicile wasn't actually changed
Sunset helps:
Evaluate domicile factors
Recommend which state to file in
Prepare affidavits establishing domicile if needed
No will and complicated family:
Example: Deceased had no will, estranged children, unmarried partner.
How it works:
State intestacy law determines heirs
Estranged children usually still inherit
Unmarried partner typically has no inheritance rights (unless joint ownership or beneficiary designations)
May be disputes about who should be administrator
Sunset helps:
Explain state intestacy law and who inherits
Identify who has priority for administrator appointment
Prepare petition for administration
Cannot resolve family disputes, but provides clear legal information
Bank requires "specific language" in court documents:
Sometimes institutions request specific wording in letters testamentary or court orders.
Example: Bank says "We need the court order to specifically authorize the personal representative to close accounts and transfer funds."
How Sunset helps:
Review bank's requirements
Confirm whether request is standard or unusual
Provide sample language for court orders
Prepare proposed orders with required language
Explain to client how to present to judge
Most probate orders can include specific language requested by institutions.
Waiting on court appointment:
While you're waiting for court to issue letters testamentary/administration:
What Sunset can do:
Complete account discovery (doesn't require authority)
Prepare closure documents ready for submission once authority received
Identify what authority documents each institution will need
What we can't do:
Actually close accounts or transfer funds (requires court authority)
Sign documents on your behalf
Bypass institutions' requirements for authority
What you should do:
Continue with probate filing process
Attend scheduled hearings
Obtain certified copies of letters once issued
Provide to Sunset so we can proceed with closures
Timeline: Court appointment typically takes 4-8 weeks after filing, depending on county. Sunset holds closure requests until authority is finalized, then immediately proceeds.
Uncertain Asset Values
Sometimes you don't know exact values:
Example: "I think there's a bank account but don't know the balance."
How Sunset helps:
Account discovery provides approximate values
We use discovered values to calculate probate estate
If close to threshold, may recommend proceeding with assumption and adjusting if needed
Better to slightly overestimate when near threshold
For probate purposes:
Initial petitions often use "good faith estimates"
Exact values determined during inventory phase
Small discrepancies usually don't affect which probate procedure applies
Need Help with Probate Uncertainty?
If you're unsure about probate requirements in your situation:
Email [email protected] with:
State where deceased lived
Approximate total asset values
Types of assets (bank accounts, real estate, etc.)
Whether will or trust exists
Family situation (spouse, children, etc.)
We'll analyze your situation and tell you:
Whether probate is required
Which type of probate applies
What documents you'll need
Estimated timeline and costs
Next steps to take
Or simply sign up for Sunset and complete onboarding - we'll automatically assess your probate needs based on the information you provide and guide you to the appropriate process.
Probate is complicated, but Sunset makes it manageable. We turn uncertainty into a clear path forward with specific forms, instructions, and support throughout the process.