Only 24% of American adults have a will. That's from the 2025 Wills and Estate Planning Study by Caring.com and YouGov, and it's down from 33% in 2022. About 13% have a living trust. The most common excuse for having neither? People just haven't gotten around to it.
Die without a will and you don't get a say. Your state's intestacy law decides who inherits, following a fixed order of relatives. In many states a surviving spouse ends up splitting the estate with your children, which can leave a widow co-owning her own home with stepchildren. An unmarried partner, a stepchild you raised and a favorite charity usually get nothing. The state itself takes the property only when no relatives can be found.
A will fixes that. It names who gets what, who settles your affairs and who raises minor children. What surprises people is what a will doesn't do. It doesn't keep your family out of court. A will is a set of instructions to the probate court, and the court process still runs start to finish.
And that process has a price. In California, the fees for the attorney and for the person settling the estate are set by statute as a percentage of the estate's gross value. On a $500,000 estate, each is entitled to $13,000. That's up to $26,000 before filing fees, appraisals and publication costs, and the state's courts say a typical case takes 9 to 18 months.
A living trust is the document built to sidestep all that. Assets you put in the trust while you're alive pass to your heirs without a probate case. It costs more to set up than a will, and it only works if you finish the paperwork. Is it worth it? That mostly depends on what you own and where you live.
What probate costs, and why your state matters so much
Probate is the court-supervised process of proving a will, paying debts and handing out what's left. The bills come from several places: court filing fees, attorney fees, pay for the executor, appraisals, sometimes a bond, and a published notice to creditors.
States treat the big items very differently. California sets fees by formula: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000 and 1% of the next $9 million. It runs on the appraised value of the property. A mortgage doesn't shrink it.
The number to know: on a $500,000 California estate, statutory fees come to $13,000 for the attorney and $13,000 for the executor. On $1 million, it's $23,000 each. A home with a big mortgage still counts at full value.
Florida publishes a fee schedule that courts presume is reasonable: $3,000 for an estate of $100,000, then 3% of the next $900,000. That's $15,000 on $500,000. Florida law also requires the attorney to tell the personal representative in writing that there's no mandatory statutory fee and that the fee can be negotiated.
Most other states just require "reasonable" fees, often billed by the hour. Where streamlined procedures exist, an uncontested estate with a clear will can get through for modest cost. Same family, same house: a $26,000 process in one state, a far smaller bill in another.
Two costs never show up on an invoice. Probate files are public, so anyone can look up what you owned and who got it. And heirs usually wait months, sometimes well over a year in a busy county, before they can sell the house or split the accounts, while the mortgage, the property taxes, the insurance and the utility bills on an empty house keep coming due. Nobody itemizes that.
Will vs. living trust, side by side
A revocable living trust is a legal container. You create it, move your house and accounts into its name, and keep full control as trustee. You can change it or cancel it any time. When you die, the successor trustee you picked follows your instructions without asking a court's permission.
| Will | Revocable living trust |
|---|
| Goes through probate | Yes | No, for assets titled in the trust |
| Public record | Yes | Generally no |
| Typical attorney cost to set up | Lower | Higher, often three to five times a will |
| Cost to your heirs later | Probate fees and delay | Usually small |
| Helps if you become incapacitated | No | Yes, the successor trustee can step in |
| Names a guardian for minor children | Yes | No, you still need a will for this |
| Work required from you | Sign it properly | Sign it and retitle your assets |
Look at the last two rows. Even with a trust, you still sign a short "pour-over" will to name guardians and catch anything left outside. And the trust controls only what you actually move into it.
That retitling step is where a lot of trusts quietly fail. Before you pay for either document, look at the cheaper tools that skip probate on their own, who really needs a trust, what each option costs in 2026 and the mistakes that land families in court anyway.
