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Will vs. Living Trust: What Probate Really Costs and Who Needs Which

A printed last will and testament, with a sticky note reading “$26,000?”.
Photo by Melinda Gimpel on Unsplash

Only 24% of American adults have a will, by a 2025 study. And a will doesn't keep a family out of court: it's a set of instructions to the probate court. In California, statutory fees on a $500,000 estate can reach $26,000, and a mortgage doesn't shrink that figure. A living trust is built to sidestep the process. Whether it's worth the cost mostly depends on what you own and where you live.

See four ways to skip probate

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By Margaret Linwood · Updated Sep 29, 2026 · Reviewed against California Courts, California and Florida probate statutes, Maryland General Assembly, IRS, American Bar Association, Caring.com/YouGov survey

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Without a will, state law decides who inherits, following a fixed order of relatives. In many states a surviving spouse ends up splitting the estate with the children. An unmarried partner, or a stepchild someone raised, usually gets nothing.

Probate has costs that never show up on an invoice, too. The files are public, so anyone can look up what was owned and who got it. Heirs often wait months, sometimes well over a year in a busy county, before they can sell the house. The mortgage, property taxes and utility bills on an empty house keep coming due the whole time.

See what each one costs to set up

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Five things to check on documents you already have

A will or trust drawn up years ago can still fail on details. These take minutes to check, and fixing them now is far easier than fixing them later.

  1. The witnesses. A will that isn't properly witnessed can be thrown out, and most states want two adult witnesses. In some states, a witness who's also an heir can void the will or that person's gift.
  2. A self-proving affidavit. It's a notarized, sworn statement. With it, the witnesses won't have to vouch for the will in court later.
  3. The deed, if there's a trust. A trust controls only what's actually moved into it. A house that was never deeded into the trust goes through probate as if the trust didn't exist.
  4. The state it was signed in. About one in 10 Americans in the 2025 survey no longer lived in the state where their will was made. A move is a good reason for a review.
  5. Anything left to one child "to share." Legally it's that child's alone, and siblings have no claim.

That's the upkeep. The bigger choice, will only or a trust, comes down to probate costs where you live and what you own, and the article walks through both, along with tools that skip court on their own.

See who needs a trust, and who doesn't

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