When Is Probate Required?
Answer a few questions to find out if an estate needs full probate, qualifies for simplified procedures, or can avoid probate entirely.
Frequently Asked Questions
If probate is required but skipped, heirs cannot legally transfer assets like real estate or access certain bank accounts. Financial institutions and government agencies require proper legal authority to release assets. Without probate, heirs may face title issues, inability to sell property, and potential legal liability.
Assets that typically avoid probate include: property held in a living trust, accounts with named beneficiaries (retirement accounts, life insurance, POD/TOD accounts), jointly owned property with right of survivorship, and in some states, property held as community property with right of survivorship.
A small estate affidavit is a sworn statement that allows heirs to collect assets without formal probate when an estate falls below a certain value threshold. Thresholds vary by state from $10,000 to $400,000. Most states require a waiting period of 30-45 days after death before using this procedure. Our Probate Self-Filing Guide includes small estate affidavit eligibility for your state.
No, having a will does not avoid probate. A will must be validated through probate court before assets can be distributed. A will tells the court who should receive assets, but the court must still supervise the process. To avoid probate, you need other tools like trusts or beneficiary designations. Use our Do I Need a Trust? tool to see if a trust is right for your situation, or set one up online with SimplyTrust.
Simple estates typically take 6-9 months. Average estates take 9-18 months. Complex estates with disputes, multiple properties, or business interests can take 2-3 years or longer. Small estate procedures may be completed in as little as 1-3 months depending on the state. Our Estate Settlement Checklist provides a step-by-step timeline for your situation.
Real estate can avoid probate if it's held in a living trust, owned jointly with right of survivorship, or (in some states) has a transfer-on-death deed recorded. Otherwise, real estate typically requires probate to transfer ownership, even if it's the only significant asset.
Probate avoidance depends on how assets are titled, not just having a will. Common methods: (1) a revocable living trust — assets titled to the trust pass to beneficiaries under the trust's terms; (2) joint ownership with right of survivorship — the surviving owner automatically owns the property; (3) beneficiary designations on life insurance, IRAs, and 401(k)s; (4) payable-on-death (POD) or transfer-on-death (TOD) bank and brokerage accounts; (5) a transfer on death deed for real property in states that allow it (Cal. Prob. Code § 5652 and equivalents); and (6) a small estate affidavit when the estate falls under your state's threshold. A will does NOT avoid probate — it only directs how probate distributes assets. Use our Do I Need a Trust? tool to see whether a trust makes sense for your situation.
