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

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 reason people give for having neither is that they just haven’t gotten around to it.

Die without a will and you don’t get a say. Your state’s intestacy law (the rules for estates with no will) decides who inherits, following a fixed order of relatives. In many states a surviving spouse ends up splitting the estate with your children. In a second marriage, that can leave your widow co-owning her own home with her 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 by naming 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 (insurance that protects heirs if the executor mishandles money), 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. The formula uses the appraised value of the property, with no deduction for a mortgage.

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 (Florida’s term for the executor) 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.

Will vs. living trust, side by side

A revocable living trust is a legal arrangement that holds your property. 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.

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, moving the deed and accounts into the trust’s name, is where a lot of trusts quietly fail. Before you pay for either document, it’s worth knowing which cheaper tools skip probate on their own, who really needs a trust, what each option costs in 2026 and which mistakes land families in court anyway.

Four ways to skip probate without a trust

Some of the best tools cost little or nothing.

Small-estate procedures. Every state has a shortcut for smaller estates, and the limits are all over the map. In California, for deaths on or after April 1, 2025, heirs can collect up to $208,850 in personal property with a simple declaration after a 40-day wait, and a primary residence worth up to $750,000 can pass through a simplified court petition.

Putting a child on the deed as joint owner also avoids probate. It’s the shortcut most lawyers warn against. Adding a child is a gift. It exposes the house to the child’s debts and divorce, it can trigger a Medicaid penalty if you need nursing home care within five years, and it can cost the child the step-up in tax basis (the reset to market value heirs normally get at death) on the gifted share.

So who needs which?

A will is usually enough if your main assets are retirement accounts and insurance with current beneficiaries, your state offers a transfer-on-death deed or cheap probate, and your family situation is simple.

A living trust earns its cost if any of these fit:

• Your house sits in a state where probate fees are high or figured as a percentage of the estate.
• There’s real estate in more than one state. Skip the trust and your family may be looking at a separate probate case in each one.
• It’s a second marriage, and you want your spouse looked after while your own children still end up inheriting.
• A child with a disability depends on benefits, or one of your heirs really shouldn’t be handed a lump sum.
• If you ever can’t handle your own affairs, you’d like someone you trust to step in smoothly, without a court guardianship.
• Privacy matters to you.

Don’t expect a revocable trust to do more than it does, though. Your creditors can still reach what’s in it. Medicaid treats everything in a revocable trust as yours, so it won’t protect you from nursing home costs either, and your income tax stays the same. As for estate tax, the federal kind isn’t in play for nearly everyone: the IRS filing threshold for 2026 is $15,000,000 per person. Some states have their own estate or inheritance tax that kicks in far lower, and that’s worth a quick look for yours.

Two more papers belong in the same folder, whichever you pick. A durable financial power of attorney and a health care directive are what your family leans on while you’re still alive.

What does each one cost to set up?

Prices swing with your city and with how tangled things are. A lawyer-drafted will usually costs $300 to $1,500, going by surveys of attorney fees. For a trust, the bill tends to land between $1,500 and $5,000 for what’s normally a package: the trust, a pour-over will, powers of attorney and a health care directive. Doing it online costs a fraction of that (under $100 up to a few hundred dollars).

Now set that against the probate bill. In a high-cost state, a $3,000 trust that spares your heirs $26,000 and a year of waiting is easy math. In a low-cost state with a transfer-on-death deed already on the house, the same $3,000 may buy very little.

Online documents can work fine for a simple will: one state, no real estate elsewhere, no blended family, no disabled heir. They’re weaker for trusts, because drafting is the easy part. Funding the trust, meaning the new deed and the retitled accounts, is where people stall, and a local estate planning attorney usually prepares and records that deed as part of the fee.

If I were comparing lawyers, I’d ask each one these four things:

• Is the fee flat, and what exactly does it include?
• Do you prepare and record the new deed for my house?
• What does probate typically cost here for an estate like mine? If the answer is “not much,” you may not need the trust.
• What do you charge to update the documents later?

Most state bar associations run a lawyer referral service, and many attorneys offer a first meeting for a low flat fee or free. People 60 and older with limited income can often get a basic will through legal aid programs funded by the Older Americans Act. The Eldercare Locator at 1-800-677-1116 can refer you.

Seven steps you can take this month

1. List what you own and how each item is titled. A single sheet of paper will do. Next to each account and property, jot down whose name it’s in: yours alone, joint, or yours with a named beneficiary. That page is your map of what would go through probate if you died today.
2. Check every beneficiary form. Pull them for the retirement accounts, the life insurance and any annuities, and while you’re at it, add a backup if there isn’t one.
3. Add payable-on-death or transfer-on-death beneficiaries wherever a bank or brokerage account doesn’t have one yet. It’s usually a single form.
4. Look up your state’s rules. You’re after two things on your state court website: the small-estate limit, and whether your state allows transfer-on-death deeds.
5. Decide: will only, or trust plus pour-over will. If you’re torn, the checklist under “So who needs which?” should settle it.
6. Sign it correctly. A will that isn’t properly witnessed can be thrown out, and most states want two adult witnesses. A notarized self-proving affidavit helps later, too. It’s a sworn statement, and it means your witnesses won’t have to vouch for the will in court.
7. Tell your executor or trustee where the originals are. Then plan to go over all of it again after any big change, like a marriage, divorce, death, birth, home purchase or move. Moves get overlooked more than you’d think: about one in 10 Americans in the 2025 survey no longer lived in the state where their will was made.

Mistakes that send families to court anyway

One is the empty trust. You paid for it, signed it and never deeded the house into it, so the house goes through probate as if the trust didn’t exist.

Stale beneficiary forms do the same kind of damage, say one that still lists an ex-spouse or a parent who died years ago. The form controls, whatever the will says.

Leaving everything to one child “to share.” Legally it’s that child’s alone. Siblings have no claim, and the handoff can create tax and creditor problems of its own.

A do-it-yourself will with a signing error. A missing witness, or a witness who’s also an heir, can void the will or that person’s gift in some states.

The last is assuming a will avoids probate, when all it does is make probate follow your wishes.

Start with the one-page list. Once the beneficiary forms are updated, whatever’s still in your name alone, usually the house, tells you whether a will covers it or a trust is worth pricing.