NOTE: State laws change frequently and the following information may not reflect recent changes in the laws. For current tax or legal advice, please consult with an accountant or an attorney since the information contained in this article is not tax or legal advice and is not a substitute for tax or legal advice.
In the United States probate is overseen by probate judges who preside in state court instead of federal court.
 This means that in the United States the steps required to probate a Last Will and Testament will vary widely from state to state or even from county to county within a state based on the applicable state laws and local laws that govern the probate process.Â
Where to Find U.S. Probate Laws
In many states the laws that determine the process required to probate a Last Will are referred to as the state "Probate Code."Â For example, the Florida Probate Code can be found at Chapters 731 through 735 of the Florida Statutes.Â
For quick links to the probate laws of each state, refer to Cornell University Law School’s Legal Information Institute website: Probate – State Statutes.
It is also important to keep in mind that state legislatures are constantly tweaking state laws, including the laws that govern probate. Thus, probate lawyers must always keep on top of these changes in order to insure that Last Wills are properly probated in their state’s probate courts.
Which Courts Oversee Probate in the U.S.?
Just like probate laws vary from state to state in the United States, so does the name of the state court that oversees probate in the United States.
 Aside from the simple name "probate court," in some states the court that oversees probate is referred to as the "orphan’s court," the "surrogate's court," or the "circuit court."
What Types of Wills are Valid in the U.S.?
You may be surprised to learn that a Last Will that is valid in one state may not be valid in another state. For example, in some states a "holographic will," which is a Last Will that is written in the Testator's own handwriting or, in some states, typed on a typewriter or printed out from a computer, and then signed at the end by the Testator, is a perfectly valid Last Will, while in a handful of states a holographic will is not recognized at all. Thus, it is very important to understand the different types of Last Wills that can be created in the United States and if the type that you use is not only valid in the state where you live, but also in any other states where you own real estate. This is because probate of real estate in the United States is governed by where the property is physically located and not where the deceased person lived at the time of death. As such, it is possible that a deceased person’s U.S. real estate could go to different beneficiaries if the deceased person’s Last Will is recognized in one state but not in another state.
It is also important to understand that if probate is required in two different states (if, for example, the deceased person owned real estate in two different states), then a probate lawyer may need to be hired in each state. In addition, a Personal Representative who is qualified to serve in one state may not be qualified to serve in the other state, so two different Personal Representatives may need to be appointed. This could be the case if the deceased person owned real estate in Florida and another state since Florida law requires a Personal Representative to be related to the deceased person by blood or certain marital relationships in order to be allowed to represent the estate in Florida probate court. For example, if the deceased person owned real estate in Florida and New York and named their New York neighbor as Personal Representative in their Last Will, under the Florida Probate Code the New York neighbor won’t be allowed to act as Personal Representative in Florida.
Where to Find Additional Information About U.S. Probate
For more information about the steps required to probate a Last Will in the United States, refer to the following:
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