Estate
When do you need probate?
Quick answerProbate is usually needed only for property in the person’s sole name with no beneficiary, co-owner, trust or TOD deed, and only if it is too large for the state’s small-estate shortcut. Even with no probate, some states still require the original will to be filed with the court.
Assets that usually skip probate
- Jointly owned property with right of survivorship
- Payable-on-death (POD) and transfer-on-death (TOD) bank and brokerage accounts
- Life insurance and retirement accounts with a living named beneficiary
- Property titled in a living trust
- Real estate with a transfer on death deed, where the state allows one
What usually triggers probate
- Assets in the person’s sole name with no beneficiary or co-owner
- Real estate in the person’s sole name with no TOD deed or trust
- An estate above the state’s small-estate limit, or one that doesn’t qualify for the shortcut
- Debts or disputes that need a court-appointed representative
Quick decision guide
- Did the person own anything in their sole name with no beneficiary, co-owner or trust? No → probate is usually not needed (but check the will-filing rule below). Yes → go to 2.
- Is that property under the state’s small-estate limit or eligible for its simplified procedure? Yes → use the shortcut. No → a probate case is usually needed.
Pilot states
| State | Small-estate shortcut | Must the will still be filed? |
|---|---|---|
| New Hampshire | No small-estate affidavit. Simple estates usually use waiver of administration under RSA 553:32, which has no dollar cap. | Yes, even with no probate. (RSA 552:3) |
| California | California has a small-estate affidavit after 40 days, with a dollar limit that is adjusted periodically (Prob. Code § 13100). | Yes, the original must be delivered to the court. (Cal. Prob. Code § 8200) |
| Texas | Small estate affidavit for intestate estates up to $75,000 (excluding homestead and exempt property), after 30 days. | No general filing deadline, but timing matters. (Tex. Estates Code § 256.001) |
| Florida | Summary administration for estates up to $150,000 (less exempt property), or when death was more than 2 years ago. | Yes, within 10 days. (Fla. Stat. § 732.901) |
| Ohio | Release from administration for estates up to $35,000, or $100,000 if all goes to the surviving spouse. | Effectively yes, within one year. (Ohio Rev. Code § 2107.10) |
See also the estate planning checklist and the executor checklist.
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