A will does not avoid probate. It is what probate reads.

Part 1

The two piles

A will is a set of instructions. The question worth answering first is who is required to read them, and over how much of the money.

Everything a person owns at death falls into one of two piles. The first pile already has a living name attached to it: a life insurance policy with a beneficiary on the form, a retirement account with a named beneficiary, a bank account marked payable on death, a house held in joint tenancy, anything already titled in a trust. Those assets move on their own instruction, straight to the named person, usually in weeks and without a courtroom. The will does not touch them. Reading it changes nothing.

The second pile is everything with no name attached. A house in one name only. A brokerage account with the beneficiary line left blank. A car, a checking account, the contents of a home. That pile is the probate estate, and it is the only pile the will governs.

Probate is a process, not a penalty

Probate proves a will is genuine, appoints someone with legal authority to act, gives creditors a fixed window to come forward, then authorizes the transfer of what is left. A will is not a way around that process. A will is the document the process reads. Dying without one does not skip probate either. It only means the state supplies the instructions instead.

For most families the largest assets now sit in the first pile by default. Retirement accounts and life insurance are opened with a beneficiary form, and that form is the entire instruction. Houses are often held jointly. What is left for a will to govern can be a small fraction of an estate, and rarely the fraction anyone expected.

This guide is educational information. It is not legal, tax or financial advice.

Part 2

The four routes out of an estate

There are four ways property passes at death, and three run outside probate entirely. Sorting a list of accounts into these rows is the most useful hour of estate work available, and it costs nothing but the statements.

The order is not negotiable

An asset can only leave once, and the first three routes go first. A will dividing everything equally between three children does not divide a life insurance policy that names one of them on the form. The policy pays that child, and the other two have no claim on it. The will then divides whatever sits in the fourth row, so if that row is nearly empty, an equal division on paper produces a badly unequal result.

A trust only counts for what it holds

A trust moves property outside probate only for what was actually retitled into it. A signed trust with the house still in a personal name moves that house through probate exactly as if the trust did not exist. The signing is the easy half. The retitling does the work.

Two edges the four rows do not cover

In a community property state a surviving spouse's half already belongs to them, and several of those states run a spousal procedure that confirms it without a full administration. A contract can also bind an estate: a partnership or shareholder buy-sell agreement can require a business interest to be sold at death on set terms, whatever the will says about who inherits it. Both sit outside the table, both are state law, and both are worth naming to a lawyer rather than reasoning out from a grid.

Part 3

The form beat the will, and then it beat the divorce decree

That a beneficiary form outranks a will sounds like a technicality until it is tested. It has been tested twice at the Supreme Court, and both times the money went to a former spouse.

Egelhoff, 2001

David Egelhoff had a life insurance policy and a pension plan through Boeing, both governed by the federal law regulating workplace benefit plans, known as ERISA. He named his wife on both. They divorced in April 1994, and just over two months later he died in a car accident, leaving no will.

Washington had a statute automatically revoking a designation naming a spouse once the marriage ends, and his children from an earlier marriage sued on the strength of it. The Supreme Court held ERISA preempts that state law as applied to these plans, because binding administrators to a different rule in every state is the burden the federal statute was written to remove. The $46,000 in life insurance stayed with the former wife.

Kennedy, 2009

William Kennedy named his wife Liv as beneficiary of his employer savings plan, with no one behind her. They divorced, and the decree stripped Liv of any interest in the plan. He never filed a new form. After he died, his daughter, acting as executor, asked the plan to pay the estate instead.

The Supreme Court, deciding on January 26, 2009, held the administrator did its job by paying according to the plan documents. ERISA gives it no exception to that duty and no role in weighing a divorce decree against the form in the file. Liv kept the money.

Where the line actually falls

The picture changes off a workplace plan. In Sveen v. Melin, decided in 2018, a man bought a life insurance policy on his own, named his wife, divorced, and never changed the form. Minnesota's revocation on divorce statute did apply, and the children took the proceeds. The difference between that and the two cases above is not fairness or intent. It is whether the asset was a workplace plan. State revocation statutes reach policies a person buys individually. They do not change what an employer sponsored plan is required to pay.

What the courts have left open is what happens after the money is paid. Kennedy decided who the plan had to pay, and expressly did not decide whether the estate could then have sued the former wife under state law to hand it back. That is a lawsuit rather than a rule, it starts after the account is empty, and courts have answered it differently. It is no substitute for a current form.

Part 4

The spouse a workplace plan protects, and the account where it does not

There is one place federal law names a beneficiary without being asked, and it reaches workplace retirement plans only.

It is narrower even than that. The rule comes from ERISA, and ERISA covers private sector employer plans. A state or municipal pension, a public school plan and most church plans sit outside it, which means they carry neither this protection nor the preemption that decided the two cases in Part 3. What governs those is the plan's own document and state law.

The consent rule

Under ERISA, a 401(k) or similar account based plan escapes the annuity requirements that apply to traditional pensions only if it provides that the participant's vested balance is payable in full, on death, to the surviving spouse. Someone else can be named only where there is no surviving spouse, or where the spouse consents.

That consent is not casual. The statute requires it in writing, requires it to identify the beneficiary taking instead, bars changing that beneficiary without a further consent, requires the spouse to acknowledge what the election gives up, and requires the signature to be witnessed by a plan representative or a notary. A designation naming an adult child while a spouse is alive, with no such signature, generally does not hold.

The rollover that removes it

An individual retirement account is not a workplace plan, and the consent rule does not follow the money into one. The form on file with the IRA custodian is the whole answer. No federal rule requires a spouse to sign, and none notifies a spouse that a form has changed. Some community property states attach a spousal interest of their own, one more rule that depends on where the account holder lives.

This matters because rolling a 401(k) into an IRA is routine at retirement and is usually presented as a change of address for the money. It is also a quiet change in who has to agree to the beneficiary.

Part 5

What probate costs, and why it cannot be rushed

Probate costs money and it costs time, and the two are set by different rules.

Fees, in a state that publishes them

Most states pay a personal representative and the estate's attorney reasonable compensation, which is not an amount anyone can look up in advance. California publishes a schedule instead, which makes it a clear illustration of the machinery even for readers elsewhere.

California Probate Code section 10800 sets the personal representative's compensation for ordinary services at 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, 1 percent of the next $9,000,000, and one half of 1 percent of the next $15,000,000. Section 10810 gives the attorney the identical schedule. Both are paid.

Two details make the total larger than it looks. The schedule runs on the appraised inventory, plus gains on sales and receipts, less losses. And the statute states plainly that the calculation is made without reference to encumbrances or other obligations on estate property. A house appraised at $500,000 with $400,000 still owed on it counts as $500,000.

That is 5 percent of the estate, before the filing fee, the referee who appraises the property, publication costs and any bond. Extraordinary services, such as selling real estate or defending a claim, are billed on top and approved separately by the court.

The clock is set by the creditor window

An estate cannot close as soon as the paperwork is finished, because creditors get a fixed period to file claims. In California a creditor has until the later of four months after letters are first issued to a general personal representative, or 60 days after that creditor is given notice of the administration. Until that window has run, distributing anything is a risk. Add the time to file, to be appointed, to inventory and appraise, to sell whatever must be sold, and to petition for final distribution.

The file is public

Probate is a court proceeding and the file is a public record. A will, once admitted, is public, and so is the inventory and appraisal listing the estate's property and what each item was valued at. Anyone who asks the clerk can read what an estate held and who received it. The three routes in the first pile leave no such record.

Part 6

The simplified transfers most estates qualify for

Full probate is not the only option, and most estates never need it. Every state provides a simplified path, usually an affidavit signed under penalty of perjury that a bank will accept with no court order at all, plus a short form court petition one step above it. What varies is the ceiling, and the variation is not small.

California publishes its figures. For deaths on or after April 1, 2025, the affidavit to collect personal property under Probate Code section 13100 runs to $208,850, and the petition to determine succession to a primary residence under section 13151 runs to $750,000. That second figure stood at $184,500 until Assembly Bill 2016 raised it and narrowed the procedure to a primary residence, effective January 1, 2025. A legislature can move a threshold by a factor of four in one session, which is the reason to look up the current number rather than trust a remembered one. Probate Code section 890 requires the amounts to be readjusted every three years, next on April 1, 2028, and the figure that applies is the one in force on the date of death.

What counts toward the ceiling

These limits are measured against the probate estate, the fourth row from Part 2. Property passing by beneficiary form or survivorship title is generally not counted toward them, which is why sorting the four routes pays twice: it decides who inherits, and it can decide whether a court is involved at all. California also requires 40 days to pass after the death before the personal property affidavit can be used.

Part 7

Adding a name to the deed solves one problem and creates four

The most common attempt at avoiding probate without help is to add an adult child as a joint owner of a house or a bank account. It works, in the narrow sense that the survivor takes the whole thing at death with no court involved. What it costs is that the transfer happens now rather than at death.

One, the co-owner's problems become the asset's problems

A joint owner holds a present interest. A creditor with a judgment against the child, a lawsuit, a bankruptcy or a divorce settlement can reach that interest while the parent is alive. The house does not have to be sold for this to hurt. A lien on it has to be cleared before anyone can sell or refinance.

Two, a joint bank account is spendable today

Adding a name to a bank account for convenience gives that person the same withdrawal rights as the original owner, not a right that begins at death. The bank will honor a withdrawal by either owner, for any amount, without asking the other.

Three, it usually cannot be undone alone

Real estate is the hard case. Once a child is on the deed, selling or refinancing the whole property needs that child's signature, and if they refuse, move far away or lose the capacity to sign, the property is stuck and the remedy is litigation. The reverse is worse rather than better: in most states a co-owner can sell or borrow against their own undivided share without asking anyone, which breaks the survivorship the deed was meant to create.

Four, it does not do what people expect for taxes

For federal estate tax, section 2040 of the tax code includes the whole value of jointly held property in the estate of the person who died, except the portion the other owner can show they paid for, and half where the only two joint owners are spouses. Adding a name does not remove the asset from an estate. Federal estate tax is rarely the live issue anyway, at a 2026 exclusion of $15,000,000 per person, though state estate taxes start far lower and Massachusetts requires a return above $2,000,000. A sentence about the estate tax not applying is a federal sentence rather than a general one.

The live issue is basis, and it is federal too. Section 1014 of the federal tax code resets the cost basis of inherited property to its value at the date of death, but only for what is included in the estate. A share handed over during life keeps the original owner's basis in the recipient's hands, and the capital gain on it is still waiting when it is sold. In a community property state, section 1014(b)(6) resets both halves when the first spouse dies, which is a real difference from a joint tenancy elsewhere.

Part 8

What the heirs receive besides the money

An inheritance arrives with conditions attached. Three are worth knowing before any paperwork starts.

Debts are paid by the estate, not by the children

As a general rule an heir does not become personally responsible for a parent's debts by inheriting. Debts are claims against the estate, paid before anything is distributed, and where the estate runs out the remaining creditors are usually left unpaid. The exceptions are people already obligated: a joint account holder, a co-signer, and in community property states a surviving spouse for community debts. A handful of states also keep filial support statutes on the books. Which exceptions apply is a state question, worth asking before paying any bill personally.

The executor carries personal exposure

Federal law puts the United States at the front of the queue. Under section 3713 of title 31, a representative who pays any other debt before a debt owed to the federal government becomes personally liable for the unpaid federal claim, up to the amount paid out. The IRS applies this where the representative had actual knowledge of facts that would put a reasonably prudent person on notice of the tax debt before making the payment. Settling the credit cards and paying out the beneficiaries before the final income tax return is dealt with is how an ordinary person acquires a personal liability. The costs of administering the estate itself are treated differently, and the federal priority is not aimed at them.

Two inherited assets, two opposite tax results

Life insurance and a traditional retirement account look almost identical on a beneficiary form and behave nothing alike afterward. Under federal tax law, amounts paid under a life insurance contract by reason of the death of the insured are excluded from the recipient's gross income by section 101(a). A traditional IRA runs the other way: federal section 1014(c) withholds the basis reset from a right to receive income in respect of a decedent, so every dollar withdrawn is ordinary income to whoever inherits it.

Federal law also puts a clock on it. Where the owner died after 2019, the balance has to be distributed within ten years of the death. The exceptions, called eligible designated beneficiaries, are a surviving spouse, a child who has not reached the age of majority, someone disabled or chronically ill, and someone not more than ten years younger than the owner. Whether a beneficiary must also withdraw something in each of the intervening years depends on whether the owner had already begun required withdrawals before dying. The regulations settling that apply for calendar years beginning on or after January 1, 2025, and the plan or custodian will say which schedule the account is on.

Part 9

The one afternoon checklist

None of this needs a lawyer to begin. It needs a list of accounts and an afternoon.

• List every account, policy and property in one place, with the company name and roughly what each is worth.
• Sort each line into one of the four routes from Part 2: beneficiary form, survivorship title, funded trust, or the will.
• Ask each company what beneficiary is on file, in writing. Memory and a copy in a drawer are not the record.
• Check the contingent beneficiary on every account, not only the primary. A blank contingent line is how an account reaches the estate when two people die in the same year.
• Look hardest at anything opened before a divorce, a remarriage, a death in the family, or a move to a different company.
• On any workplace retirement plan, confirm whether a spouse is on the form, and whether a signed spousal consent exists for anyone else.
• Check how the deed to each property is actually titled. Sole name, joint tenancy and tenancy in common produce three different outcomes.
• If a trust exists, list what has actually been retitled into it and what has not.
• Add up the fourth route only, and compare that total against the simplified transfer ceilings the state publishes. That comparison shows whether full probate is even in question.
• Find the state's own court self help pages for probate, save the link, and put a date on repeating this review after any marriage, divorce, birth, death or change of account.

The first three items find most of the damage. A beneficiary form that has not been read in twenty years is the most common defect in an otherwise careful plan, and it is the cheapest one to repair.