When Is Probate Required? (2026)

Updated August 3, 2026. Quick answer: probate is required when property is titled in the deceased person’s name alone with no beneficiary and no survivor on it — and it is not required for anything that already has a destination. Whether a will exists does not decide it. How the asset is titled decides it.

The test, in one sentence

Ask of each asset: does it already know where to go? A retirement account with a living named beneficiary, a life insurance policy, a payable-on-death bank account, a transfer-on-death deed or security registration, a house held in joint tenancy with right of survivorship, anything titled in a funded living trust — each of those passes outside probate on its own terms. What is left over is the probate estate.

Why “I have a will” is not the answer

A will does not avoid probate. A will is the instruction manual the probate court follows. Dying with a will and dying without one both lead to the same courthouse; the difference is whether your instructions or the state’s intestacy statute govern the distribution, and whether you chose the executor or the court appoints an administrator.

The small-estate exits

Every state provides some shortcut for estates below a threshold — an affidavit procedure, a summary administration, or a simplified petition. The thresholds vary enormously, and so does the single most consequential detail: whether real estate can pass that way. In many states a house in sole name disqualifies the estate from the shortcut whatever the dollar figure says; in others real property qualifies only under a cap; in several the statute is silent, which is an open question rather than permission. The thresholds and what each covers are on small estate limits by state.

When probate is required even though it looks avoidable

• A named beneficiary died before the owner and no contingent was named — the asset falls back into the estate.
• The beneficiary designation names “my estate.”
• A living trust was signed but the house was never retitled into it — the most common and most expensive planning failure there is.
• There is real property in a second state, which can require an ancillary proceeding there even if the home state estate avoids one.
• A creditor forces administration, or a claim has to be adjudicated.

What it costs when it is required: probate cost by state and what a probate attorney costs. State detail: Indiana, and Texas, which has an unusual alternative.

Statutory text read at each state’s own legislature or official code publisher. General information, not legal advice; fee statutes change and a court retains the final say on what is reasonable.