Ashford International Law P.C.

Probate is the court proceeding in which a local court confirms the validity of a will, appoints a personal representative and supervises that person while the decedent’s assets are collected, debts and taxes are paid and the remainder is distributed to the heirs and beneficiaries. The personal representative is called an executor when the will names one and an administrator when there is no will or the named executor cannot serve. Succession law in the United States is state law, so the procedure, the deadlines and the costs differ from one state to the next.

Foreign nationals meet probate in two situations: as heirs of an estate administered in the United States, and as owners of U.S. assets whose own estates will one day require a U.S. proceeding. In both situations the procedure is unfamiliar, because it has no direct counterpart in continental Europe. This article describes probate in the four U.S. jurisdictions in which the firm’s attorneys are licensed: the District of Columbia, Maryland, Virginia and California.

Probate compared with a European estate settlement

In most civil law countries the heirs step into the decedent’s position at the moment of death. German law transfers the estate as a whole to the heirs (§ 1922 BGB), Swiss law does the same (art. 560 ZGB), and French law places the heirs designated by statute in possession of the decedent’s property without any court act (art. 724 Code civil, the saisine). The heirs then prove their status with a document: a German certificate of inheritance (Erbschein) issued by the probate court (§ 2353 BGB), a French acte de notoriété drawn up by a notaire (art. 730-1 Code civil), or a Swiss certificate of heirship (art. 559 ZGB). A court rarely supervises what happens next.

In the United States, by contrast, the assets that pass under the will or by intestacy come under the control of the personal representative, not the heirs. The estate is treated as a separate taxpayer with its own taxpayer identification number and must file a federal income tax return (Form 1041) in any year in which its gross income reaches $600 (26 U.S.C. § 6012(a)(3)). Creditors are paid before the heirs receive anything, and the heirs take their shares by distribution from the personal representative. The document that proves authority is the personal representative’s letters (letters testamentary or letters of administration), issued by the court.

Table 1. Establishing authority over an estate

Country	Who holds the estate after death	Proof of authority	Use in the United States
Germany	The heirs, by universal succession (§ 1922 BGB)	Erbschein from the probate court (§ 2353 BGB)	Evidence of heirship; does not replace U.S. letters where a U.S. court proceeding is required
France	Heirs designated by statute take possession without a court act (art. 724 Code civil)	Acte de notoriété by a notaire (art. 730-1 Code civil)	Same as Germany
Switzerland	The heirs, by universal succession (art. 560 ZGB)	Certificate of heirship (art. 559 ZGB)	Same as Germany
European Union	Determined by the applicable national law	European Certificate of Succession (Regulation (EU) No 650/2012, arts. 62 to 73)	Issued for use in the Member States (art. 62(1)); no binding effect in the United States
United States	The personal representative, for assets passing under the will or by intestacy	Letters testamentary or letters of administration issued by the court	Required by most U.S. institutions for probate assets

Foreign documents presented in a U.S. proceeding are generally authenticated by apostille, since the United States, Germany, France, Switzerland and Austria are all parties to the Hague Apostille Convention of 1961, and accompanied by a certified English translation. The firm’s article on estate planning differences between continental Europe and the United States covers the substantive differences in more detail.

Assets that pass outside probate

A large part of a typical American estate never passes through probate. The following assets pass directly to the survivor or the named beneficiary:

• Property held in joint tenancy with right of survivorship, or by spouses as tenants by the entirety: the decedent’s interest ends at death and the survivor becomes the sole owner. The firm’s page on asset planning using joint titles describes the forms of joint ownership.
• Life insurance, annuities and retirement accounts with a named beneficiary.
• Bank accounts with a payable-on-death designation and brokerage accounts registered in transfer-on-death form.
• Real estate conveyed by a transfer-on-death deed, which is available in the District of Columbia (D.C. Code § 19-604.01 and following), Virginia (Va. Code §§ 64.2-621 to 64.2-638), California (Cal. Prob. Code § 5600 and following, currently in effect until January 1, 2032) and, from October 1, 2026, Maryland (Md. Code, Real Prop. §§ 14-1001 to 14-1014).
• Assets held in a trust.

Virginia real estate follows a rule of its own. Title to Virginia real estate vests in the heirs or devisees at the moment of death, and the personal representative has power over it only where the will or a court grants that power (Va. Code §§ 64.2-521, 64.2-532, 64.2-533). The will is recorded when it is probated, and a sworn list of heirs is recorded whether or not there is a will (§ 64.2-509). The real estate nevertheless remains exposed to the decedent’s creditors: a sale by an heir or devisee within one year after death is not valid against creditors unless it is made under a court decree with the proceeds paid to a special commissioner, or unless no suit to administer the real estate is brought and no report of debts is filed within that year (§§ 64.2-534, 64.2-535).

Passing outside probate does not mean passing outside the tax system. Jointly held property, payable-on-death and transfer-on-death assets, retirement accounts, life insurance owned by the decedent and the assets of a revocable trust generally remain part of the gross estate for federal estate tax purposes (26 U.S.C. §§ 2033, 2038, 2039, 2040, 2042). For a decedent who was neither a U.S. citizen nor a U.S. domiciliary, only U.S.-situs property is included, and proceeds of insurance on the decedent’s life are not U.S.-situs property (§ 2105(a)). U.S. banks and brokers will nevertheless generally require an IRS transfer certificate before releasing such a decedent’s assets, as described below.

The probate process step by step

Delivering the will. The person holding an original will must deliver it promptly after the death. In the District of Columbia the will must be delivered within 90 days after the holder learns of the death, on pain of a fine (D.C. Code § 18-111); in California the custodian must deliver it to the clerk of the superior court within 30 days after learning of the death (Cal. Prob. Code § 8200); Maryland requires delivery to the Register of Wills of the proper county (Md. Code, Est. & Trusts § 4-203).

Opening the estate. A family member, the named executor or another interested person petitions the court in the county where the decedent was domiciled or, for a decedent domiciled elsewhere, where property is located. The court admits the will, appoints the personal representative, sets any bond and issues letters. A personal representative living abroad faces additional requirements. The District of Columbia requires a nonresident to appoint the Register of Wills as agent for service and excludes aliens who have not been lawfully admitted for permanent residence (D.C. Code § 20-303). Maryland requires a nonresident to file an irrevocable designation of a Maryland resident as agent for service of process, and from October 1, 2026 permits a person who is neither a U.S. citizen nor a permanent resident to serve only if that person is domiciled in the United States and is the decedent’s spouse, ancestor, descendant or sibling (Est. & Trusts § 5-105(c), as amended by 2026 Md. Laws ch. 537). A foreign national living abroad without permanent residence therefore cannot serve in Maryland. Virginia permits any individual to serve but requires a surety bond from a nonresident, even where the will waives surety, unless a resident co-fiduciary qualifies or the estate does not exceed $35,000 (Va. Code §§ 64.2-1411, 64.2-1426). California permits a person resident outside the United States to serve only as an executor named in the will (Cal. Prob. Code § 8402), and the court may require a bond from a nonresident even where the will waives it (§ 8571).

Notice to heirs and creditors. The personal representative notifies the heirs and beneficiaries and publishes or sends notice to creditors. Claims not presented within the statutory period are barred. The personal representative also obtains a taxpayer identification number for the estate and notifies the IRS of the fiduciary relationship on Form 56 (26 U.S.C. § 6903).

Inventory. The personal representative lists and values the probate assets and files or delivers the inventory. In California the non-cash assets are appraised by a court-appointed probate referee (Cal. Prob. Code § 8800 and following).

Debts and taxes. The personal representative pays the funeral expenses, the costs of administration and the decedent’s debts, and files the decedent’s final income tax return, the estate’s income tax returns and, where required, the federal estate tax return (Form 706) and state estate tax returns. Federal tax claims have priority: where the estate is insufficient to pay all debts, a personal representative who pays other debts before a federal claim is personally liable to the extent of the payment (31 U.S.C. § 3713). In 2026 the federal basic exclusion amount is $15,000,000 (26 U.S.C. § 2010(c)(3)). Maryland’s inheritance tax of 10 percent applies to property passing to heirs other than close relatives; the state death taxes are summarized in Table 2.

Accounting and distribution. The personal representative accounts for all receipts and disbursements, sells assets where necessary, and distributes the remainder under the will or the intestacy statute. In Maryland the accounts are reviewed by the Register of Wills and the Orphans’ Court, in Virginia by the commissioner of accounts. The firm’s pages on dying without a will describe who inherits where there is no will.

Table 2. Probate in the four jurisdictions

	District of Columbia	Maryland	Virginia	California
Court	Probate Division of the Superior Court	Register of Wills and Orphans’ Court of the county	Clerk of the circuit court; commissioner of accounts	Superior court of the county
Small estate procedure	Up to $80,000 (§ 20-351)	Up to $50,000, or $100,000 where the spouse is the sole heir or legatee (§ 5-601)	Affidavit for personal property up to $75,000, after 60 days (§ 64.2-601)	Affidavit up to $208,850, after 40 days (§ 13100); court petition for a primary residence up to $750,000 (§ 13151)
Creditors’ claims	Six months after first publication (§ 20-903)	Six months after death or two months after notice, whichever is earlier (§ 8-103)	No fixed bar date; no distribution can be compelled for six months (§ 64.2-554); debts and demands hearing before the commissioner (§ 64.2-550)	Four months after letters or 60 days after notice, whichever is later (§ 9100)
Inventory	Three months (§ 20-713.01)	Three months (§ 7-201)	Four months (§ 64.2-1300)	Four months, with a probate referee (§ 8800)
Accounts and closing	Certificate of completion after the claims period; otherwise closed three years after appointment unless extended (§§ 20-735, 20-1301)	First account within nine months of appointment, then every six months (§ 7-305)	First account within 16 months of qualification (§ 64.2-1304)	Final distribution or status report within one year, or 18 months where Form 706 is due (§ 12200)
State death tax	Estate tax above $4,988,400	Estate tax above $5,000,000; inheritance tax of 10 percent	None	None

A simple estate in any of the four jurisdictions rarely closes in less than nine to twelve months; the California courts describe a typical duration of nine to eighteen months. Estates that must file a federal estate tax return, sell real estate or make distributions abroad take longer.

What probate costs

There is no uniform fee. The four jurisdictions follow different models for compensating the personal representative and the attorney, and each charges its own court fee or tax.

District of Columbia. The personal representative is entitled to reasonable compensation (D.C. Code § 20-751), and the compensation of the personal representative and of the attorney is subject to review by the court (§ 20-753). Court costs follow a schedule based on the value of the probate estate: $1,800 for an estate of $1,000,000 to $2,500,000, $2,300 for an estate of $2,500,000 to $5,000,000, and $2,300 plus 0.02 percent of the excess above $5,000,000 (D.C. Super. Ct. Prob. R. 425).

Maryland. The personal representative’s commission may not exceed 9 percent of the first $20,000 of property subject to administration and $1,800 plus 3.6 percent of the excess (Est. & Trusts § 7-601). Attorney’s fees are allowed separately by the court, which considers a fair total cost of administration (§ 7-602); where all interested persons and creditors with open claims consent in writing to payment without a court order, commissions and attorney’s fees together may not exceed the commission schedule (§ 7-604). The Register of Wills charges a probate fee ranging from $2,000 for an estate of $1,000,000 to $2,500,000 to $10,000 plus 0.02 percent of the excess for an estate above $10,000,000 (§ 2-206).

Virginia. The personal representative receives reasonable compensation, reviewed by the commissioner of accounts (Va. Code § 64.2-1208). Before qualifying, the personal representative pays a state probate tax of 10 cents per $100 on the entire probate estate once it exceeds $15,000 (§ 58.1-1712), and a county or city may add a local probate tax of one-third of the state tax (§ 58.1-1718). Clerk’s fees and the commissioner’s fees are added. For a nonresident decedent, the Virginia Department of Taxation applies the probate tax to Virginia real estate and tangible personal property only.

California. California is the only one of the four jurisdictions that sets compensation by statute as a percentage of the estate. The personal representative and the attorney are each entitled to 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, 1 percent of the next $9,000,000 and 0.5 percent of the next $15,000,000, with the court setting a reasonable amount above $25,000,000 (Cal. Prob. Code §§ 10800, 10810). The percentages apply to the gross value of the estate, without deduction for mortgages or other debts. Additional compensation may be allowed for extraordinary services. The filing fee for a petition for probate is $435.

Table 3. Principal costs for a probate estate of $2,000,000

Jurisdiction	Personal representative	Attorney	Court fee or probate tax
District of Columbia	Reasonable compensation, subject to court review	Reasonable compensation, subject to court review	$1,800
Maryland	Up to $73,080	Reasonable fee allowed by the court; with consent, commission and fee together up to $73,080	$2,000
Virginia	Reasonable compensation reviewed by the commissioner of accounts	Reasonable fee	State tax $2,000, local tax up to about $667, plus clerk’s and commissioner’s fees
California	$33,000 statutory compensation	$33,000 statutory compensation	$435 filing fee, plus the probate referee’s commission of 0.1 percent of the appraised non-cash assets

A revocable trust avoids these costs for the assets held in it. In California, where statutory compensation on a $2,000,000 estate reaches $66,000, a funded revocable trust is the standard planning instrument. In the District of Columbia, Maryland and Virginia the cost argument is weaker, since much of a typical estate already passes outside probate and a trust has administration costs of its own after the death. A trust can nevertheless serve other purposes, such as avoiding a separate proceeding in each state where real estate is located and managing assets during incapacity. For a grantor or beneficiary living in Europe, the tax treatment of the trust in that country must be examined first, since Germany and France tax trusts under rules of their own.

When the decedent lived outside the United States

A decedent who lived abroad and owned U.S. assets typically has a primary estate proceeding in the country of residence. Where a U.S. proceeding is needed as well, it is called ancillary probate and takes place in the state where the property is located. Real estate and tangible property located in a state generally require such a proceeding unless they pass outside probate. Bank and brokerage accounts can sometimes be collected by the foreign representative or the heirs without a U.S. court, depending on the state and on the institution.

Each of the four jurisdictions allows a personal representative appointed elsewhere to act to some extent without local letters:

• District of Columbia. A foreign personal representative files authenticated copies of the appointment and of the will, appoints an agent for service of process, publishes notice to creditors and may exercise the powers of the office in the District; assets may be removed after the six-month claims period or earlier against a bond (D.C. Code §§ 20-341 to 20-343). The Superior Court’s guidance treats appointments made in another country, authenticated by apostille, as qualifying.
• Maryland. A foreign personal representative is not required to take out letters in Maryland; the representative files proof of appointment, an authenticated copy of the will and an application to set the Maryland inheritance tax, and publishes notice to creditors (Est. & Trusts §§ 5-501 to 5-504). For decedents dying on or after July 1, 2026, a nonresident decedent’s intangible property is treated as located at the decedent’s domicile for Maryland inheritance tax purposes (2026 Md. Laws ch. 504).
• Virginia. A will proved in another jurisdiction may be admitted in Virginia on an authenticated copy; it is effective for real estate only if it was executed in a form valid under Virginia law (Va. Code § 64.2-450). A holder of money or personal property may pay the representative appointed at the decedent’s domicile after 90 days if the amount is below $35,000; for larger amounts, only after publishing notice for four weeks and only if no Virginia personal representative has been appointed (§ 64.2-609). A similar rule applies to securities (§ 64.2-608).
• California. A personal representative appointed in a foreign country may petition for probate of the will and for appointment of a California personal representative (Cal. Prob. Code § 12510). A will admitted to probate abroad is recognized only if the foreign proceeding rested on a finding of domicile, gave notice and is final (§ 12523). The affidavit procedures for sister-state representatives (§§ 12570 to 12572) are not available to a foreign-country representative, but the heirs themselves may use the small estate affidavit (§ 13006).

In many civil law estates no one holds an office comparable to that of a personal representative, since an executor (Testamentsvollstrecker, Willensvollstrecker) is appointed only where the will provides for one. Where a German or Swiss estate is administered by the heirs themselves, a U.S. court will usually appoint a local administrator, often a person the heirs nominate, and the requirements for nonresident personal representatives described above then apply.

Federal tax runs in parallel. The executor of a nonresident decedent who was not a U.S. citizen must file Form 706-NA within nine months after death if the U.S.-situs gross estate exceeds $60,000 (26 U.S.C. §§ 6018(a)(2), 6075(a)); the unified credit for such estates is $13,000 (§ 2102(b)(1)), unless an estate tax treaty grants more. Where no executor has been appointed in the United States, any person in possession of the decedent’s U.S. property is treated as the executor (§ 2203). U.S. banks, brokers and transfer agents protect themselves by releasing the assets only against a transfer certificate (Form 5173) issued by the IRS (Treas. Reg. § 20.6325-1). No certificate is required for property administered by a personal representative appointed and acting in the United States; where the U.S.-situs estate does not exceed $60,000, the IRS, on request by affidavit, issues a letter stating that no certificate is required. The IRS currently states a processing time of 12 to 18 months where the certificate is requested by affidavit, which frequently makes the transfer certificate the longest step in the settlement. The firm’s pages on non-US decedents and nonresidents with U.S. assets, and its advisor guide on ancillary probate on the Articles and Guides page, cover these steps in detail.

When heirs live outside the United States

Heirs living abroad take the same shares as heirs living in the United States, but the administration raises practical and tax questions of its own:

• Documents. Powers of attorney, waivers, consents and receipts signed abroad are usually signed before a notary or a U.S. consular officer and, where executed before a foreign notary, authenticated by apostille.
• Taxpayer identification. A nonresident heir without a Social Security number needs an individual taxpayer identification number (ITIN), applied for on Form W-7, to claim refunds or credits of tax withheld.
• Estate income tax. A domestic estate with a nonresident alien beneficiary must file Form 1041 regardless of the amount of its income (26 U.S.C. § 6012(a)(5)), and it withholds U.S. tax, generally 30 percent unless a treaty reduces the rate, on distributions of U.S.-source investment income such as dividends to a foreign beneficiary (§ 1441; Treas. Reg. § 1.1441-5(b)(2)(iii)).
• Sale of U.S. real estate. When a domestic estate sells U.S. real estate at a gain, the executor withholds 21 percent of any later distribution of that gain to a foreign beneficiary (26 U.S.C. § 1445(e)(1); Treas. Reg. § 1.1445-5(c)(1)(iii)). When a foreign heir sells inherited real estate personally, the buyer withholds 15 percent of the amount realized (§ 1445(a)), with an exemption up to $300,000 and a reduced 10 percent rate up to $1,000,000 where the buyer acquires the property as a residence (§ 1445(b)(5), (c)(4)). Since inherited property takes a basis equal to its value at death (§ 1014), the tax actually due is often far below the amount withheld; the heir obtains credit for the withholding by filing a U.S. income tax return (Form 1040-NR), or may apply in advance for a reduced withholding certificate (Form 8288-B).
• Tax in the heir’s country. Germany, France, Switzerland (depending on the canton) and many other countries tax the heir on the inheritance under their own rules. The estate tax conventions of the United States with Germany, France and several other countries prevent or reduce double taxation.

Whether an estate administered in the United States is a domestic or a foreign estate for income tax purposes is a question of fact, which turns on the location of the assets, the place of administration and the residence of the personal representative, the decedent and the beneficiaries (26 U.S.C. § 7701(a)(31)(A)). An ancillary U.S. proceeding for a decedent who lived abroad does not by itself make the estate a domestic estate. The firm’s page on non-US beneficiaries addresses the tax and practical questions for heirs abroad.

Practical steps

1. List each U.S. asset with its location, its title and the way it passes at death: will, survivorship, beneficiary designation, transfer-on-death registration or trust.
2. Locate the original will and deliver it to the proper court within the applicable period.
3. Determine whether the estate qualifies for a small estate procedure in each state where assets are located.
4. Decide who will serve as personal representative, taking into account the restrictions and bond requirements for nonresidents.
5. Obtain apostilles and certified translations for foreign death certificates, wills, certificates of inheritance and powers of attorney.
6. Obtain a taxpayer identification number for the estate, and ITINs for heirs abroad who will need them.
7. Calendar the deadlines for notices, creditors’ claims, the inventory, accounts and the tax returns, including Form 706 or Form 706-NA nine months after death.
8. For a decedent who was neither a U.S. citizen nor a U.S. domiciliary, request the transfer certificate early, since it frequently sets the pace of the entire settlement.
9. Review during lifetime whether transfer-on-death designations or a revocable trust would avoid probate or ancillary probate, and how the chosen arrangement is taxed in each country concerned.

The firm administers estates and trusts in the District of Columbia, Maryland, Virginia and California and advises heirs and personal representatives in estates with assets or beneficiaries in Europe, as described on its estate settlements page. Its attorneys are licensed in Washington DC, Virginia, Maryland, California and Germany. Related questions are covered in the firm’s webinars.

The articles are intended for information purposes only. They should not be construed as legal advice. For a comprehensive evaluation of your individual situation please contact us at (202) 790-2500 or at info@internationalestatelaw.com for an Initial Consultation Package.

This article describes general principles and is not legal or tax advice. The result in a particular case depends on its facts, on the date of death and on the law of the jurisdiction concerned. The figures given are those applicable in 2026.