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 $15,000 to $400,000. 23 states require a 30-day wait after death before the affidavit can be used; 15 require none, and the longest wait is 60 days. 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 3-12 months, depending on the state. Average estates take 6-18 months. Complex estates with disputes, multiple properties, or business interests can take 9-36 months or longer. A small estate procedure runs on the state's waiting period after death instead. Our Estate Settlement Plan 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.
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Get a complete guide for your specific circumstances.
Death of a Parent
A step-by-step guide to what happens after a parent dies: the documents to find, the certificates to order, and whether probate is even required.
Learn more
Loss of a Spouse
What a surviving spouse needs to do: death certificates, survivor benefits, whether probate is even required, and the tax election that expires.
Learn more
Named as Executor
What an executor actually does: getting appointed, notifying creditors, paying debts and taxes, and where personal liability starts.
Learn moreMore tools for handling this estate
Calculators and checklists for executors and trustees.
Petition for Probate and Letters
Prepare the application to open probate and request Letters Testamentary or of Administration.
Notice to Creditors
Prepare the creditor notice for an estate — the official state form or a notice typeset to statute, plus mailed notices for known creditors.
Renunciation of Executor
Decline an appointment as executor — the writing filed with the court, drafted to your state's rule, with its deadline and filing office.
Affidavit of Heirship
Prepare the sworn statement of a deceased person's family history and heirs for recording in the county land records, composed to your state's statute with its recording instructions.
Small Estate Affidavit
Prepare the affidavit that collects a small estate's property without probate — the official state form or an affidavit drafted to statute, plus a presentation letter for each holder.
Estate Inventory
Prepare the probate inventory of estate property — every asset at its date-of-death value, composed to your state's statute, with the state's filing or delivery instructions.
How Much Does Probate Cost?
Estimate attorney fees, executor fees, court costs, and timeline for probating an estate in your state. See if the estate qualifies for simplified probate procedures.
How Much Can an Executor Charge?
Calculate how much an executor (personal representative) can charge for administering an estate. See if your state has statutory fees or uses reasonable compensation.
Who Inherits Without a Will?
Find out who inherits your estate and how much they get if you die without a will. Based on your state's intestate succession laws.
What's Fair Trustee Compensation?
Find out what's fair compensation for serving as trustee. Compare family, professional, and corporate trustee rates based on your situation.
How Much Are Estate & Inheritance Taxes?
Calculate federal estate tax, state estate tax (12 states + DC), and inheritance tax (5 states) for an estate or trust.
How Many Death Certificates Do I Need?
Calculate how many certified death certificates you need based on the assets and accounts you need to close. See state-specific ordering information.
