Probate Law: A Look Across States

Takeaways

• Probate is a legal process for settling an estate. It can be costly and time-consuming but can often be avoided through various estate planning tools.
• Probate laws and avoidance strategies, such as transfer-on-death deeds and joint ownership, vary significantly by state, making it crucial to understand local regulations and update plans regularly to prevent unintended probate.

“Probate” is a term often heard in estate planning discussions, but do you really know what it is, how it works, and how to “probate-proof” your estate?

Avoiding probate is a common goal — and for good reason. Probate can add costs, administrative burdens, and stress for families during a period of grief. It also impacts privacy and can complicate asset management across multiple states, each with its own probate rules.

Trusts are a common tool for bypassing probate, but states offer other options as well. These vary widely, underscoring the importance of understanding local laws if probate avoidance is a priority. Even a single missed step can inadvertently trigger probate. And as a new law in Delaware shows, probate laws are ever-evolving and subject to change.

Your plan may need to change, too, in response to legal and life changes.

What Is Probate — and Why Should You Care?

You may know that probate is an integral part of the estate-settlement process and has something to do with court procedures. You may also know that many families try to avoid it entirely — often because of the costs involved. You might even be familiar with some of the strategies, such as the use of a revocable living trust, that allow assets to bypass probate and reach heirs more quickly and seamlessly.

Unlike taxes and death, probate isn’t inevitable. It’s simply the default procedure for distributing assets when someone dies and their estate plan hasn’t been intentionally structured to avoid it.

At its core, probate is a legal process, neither inherently “good” nor “bad.” It exists to serve specific purposes. Depending on your personal preferences and family dynamics, some of those purposes can be beneficial, while others can feel more like obstacles.

On the one hand, probate can:

• Provide an orderly, court-supervised system for settling a person’s affairs.
• Protect creditors’ rights and direct property to pass under court oversight rather than informal agreements among family members.
• Give legal protection to executors and certainty that the estate has been administered accurately and lawfully.

But the process can also:

• Take months (or even years) to complete, depending on the state and the size or complexity of the estate.
• Consume a significant share of the estate’s value in the form of legal fees, court costs, appraisal expenses, and executor compensation.
• Become part of the public record, so almost anyone can access details about assets, debts, and distributions.

These costs and transparency issues are why so many people aim to avoid probate. Using tools such as trusts, joint ownership, and beneficiary designations can allow assets to pass directly to heirs without court involvement. Avoiding probate can also simplify things when someone owns property in multiple states, since probate rules vary widely and often require separate (or “ancillary”) proceedings for out-of-state real estate.

That said, probate isn’t always the villain it’s made out to be. For small or straightforward estates, many states offer simplified probate or “small estate” procedures that are relatively quick and inexpensive.

Ultimately, whether to probate — or not to probate — comes down to control. When an estate plan isn’t set up to skip probate, state law and the courts step in to decide how and when property is distributed. That may be perfectly fine for some families. In fact, court supervision can be valuable in situations where heirs disagree, creditors are involved, or a neutral third party is needed to ensure fairness.

In short, probate can be both a safeguard and a burden. And its impact depends heavily on where you live.

A Patchwork of Probate Laws: Delaware’s New Take

Probate law is not uniform across the United States. Each state has its own rules governing how estates are administered, what fees apply, and which types of property can bypass the probate process. The result is a patchwork system where estate planning tools that effectively avoid probate in one state may not be valid or available in another.

Take Delaware, for example, where transfer-on-death (TOD) deeds can now be used for real estate — but require careful planning to execute properly.

A TOD deed works much like a transfer-on-death designation on a bank or investment account: ownership transfers directly to the named beneficiary when the owner dies, with no court proceeding necessary.

During their lifetime, the owner keeps full control and can sell, refinance, or revoke the deed at any time. After death, the transfer occurs outside probate, with the goal of saving time, legal fees, and paperwork for surviving family members.

In 2025, Delaware lawmakers approved a new statute authorizing TOD deeds for real property. Allowing TOD deeds puts Delaware in the company of more than half of U.S. states that already offer this probate-avoidance tool.

In each state, however, the laws differ in terms of deed recording deadlines, the types of property that qualify, who can serve as a beneficiary, and other important details. For example:

• Delaware TOD deeds must be recorded in the county land records before the owner’s death. TOD deeds take precedence over conflicting instructions in a will.

• California and Arizona have long allowed TOD deeds, but they come with strict notice and revocation requirements. California law stipulates that a TOD deed must be recorded within 60 days of being signed/notarized, and Arizona, which calls a TOD deed a “beneficiary deed,” requires a recording form or a new beneficiary deed if the previous TOD deed is revoked.
• Florida does not recognize TOD deeds for real estate, relying instead on enhanced life estate deeds (sometimes called “Lady Bird” deeds).

With the addition of Delaware, 33 states now allow TOD deeds, but not all TOD laws are created equal. These state-level differences don’t just apply to TOD deeds, either. States offer several estate planning options for transferring property outside probate. Like TOD deeds, nuances to these rules can surprise people who assume the process is identical everywhere.

A Sampling of Probate-Avoidance Tools and State Differences

These are some of the most common methods for avoiding probate and how they vary across the country:

Revocable Living Trusts

The most comprehensive way to avoid probate is through a revocable living trust. While the concept is similar nationwide, the fine print can differ, such as how trusts are taxed, what types of property (like vehicles, business interests, or real estate) can be easily retitled into the trust, and what formalities — such as notarization or witness requirements — are needed. Assets properly transferred into a revocable living trust can bypass probate proceedings and also provide continuity if the owner becomes incapacitated.

Transfer-on-Death (TOD) and Payable-on-Death (POD) Designations

These designations let you name beneficiaries directly on assets such as bank accounts, investment accounts, and now in many states (including Delaware), real estate. However, be aware of state differences, including the following:

• Florida permits POD designations on bank accounts, but some investment accounts may require additional paperwork or trustee consent.

• California allows TOD and POD accounts. However, strict rules apply for multiple beneficiaries or joint accounts, and some account types (like certain retirement plans) may have their own beneficiary rules.

• Massachusetts recognizes POD accounts, but the POD designation is superseded by assets titled in a trust and only takes effect on jointly held accounts after the death of the last surviving co-owner.

Joint Ownership With Right of Survivorship

When property, such as a home or bank account, is titled jointly with right of survivorship, the surviving owner automatically inherits the asset. This is recognized in most states, though the rules for creditor claims or marital property can differ. For instance, Florida and Massachusetts offer “tenancy by entirety” for married couples, providing probate avoidance and asset protection benefits.

Small-Estate or Simplified Probate Procedures

Even if probate can’t be avoided, many states offer faster and cheaper versions for modest estates. However, monetary thresholds and other rules are highly state-specific.

• California’s “small estate” procedure applies when total assets are under $208,850. The process requires a small estate affidavit to transfer personal property. A separate, higher threshold ($750,000) now exists for a simplified court petition to transfer a primary residence.

• Texas and Delaware have lower thresholds ($75,000 and $30,000, respectively). These options can save families significant time and expense — but they often exclude real estate or certain account types. In Texas, the affidavit generally cannot be used to transfer title to real estate other than the decedent’s homestead, while in Delaware, the procedure is typically not available for solely owned Delaware real estate.

Transfer-on-Death Registration for Vehicles and Securities

A growing number of states, including Ohio, Arizona, and California, allow vehicle owners to register a TOD beneficiary, much like adding one to a bank account. The title automatically transfers on death without probate.

Lifetime Gifting and Business Succession Planning

Lifetime transfers are an effective yet irreversible strategy for simplifying estate administration by reducing assets subject to probate. However, the ease of execution and documentation requirements for moving business interests or family property out of one’s name before death differs across the country.

Planning Mistakes That Can Result in (Unintended) Probate

Cautionary tales abound about families that thought they had done everything necessary to avoid probate, only to find out that the process is still needed because they skipped critical planning steps — and attorney advice.

An article in the Cape Gazette details how a Delaware couple created a trust intending to avoid probate, but nearly $1 million in assets remained outside the trust because they were not retitled in the trust’s name. When one spouse died, the property remained in their individual ownership, triggering Delaware probate and more than $10,000 in fees to the local probate court, on top of months of paperwork and filing deadlines. The surviving spouse said she assumed everything was jointly owned.

Failing to transfer real estate into a trust is just one mistake that can unintentionally lead to probate. Other mistakes that often catch families off guard include:

• Mistitled or jointly held assets. Joint ownership can help avoid probate, but if the title isn’t correctly structured or aligns with the wrong type of survivorship, assets can still end up in probate.
• Out-of-date beneficiary designations. Bank, investment, retirement, or insurance accounts with old or inconsistent beneficiaries can override other estate planning documents, triggering probate.
• Overlooking multistate property. Owning real estate, vehicles, or accounts in multiple states can require ancillary probate if the plan doesn’t account for each jurisdiction’s laws. What passes outside probate in one state may still need court involvement elsewhere.
• Assuming informal arrangements are enough. Verbal promises, handwritten notes, or “family agreements” do not replace valid legal documents. Without formal execution, courts may intervene.
• Ignoring state-specific rules or exemptions. Every state has different small estate thresholds, procedural rules, and probate laws. Plans that work in one state may fail in another.
• Neglecting periodic updates. Life changes, like marriage, divorce, new children, or death of a beneficiary, require updates. Old, unreviewed documents can result in unintended probate or disputes.

Lack of an estate plan is a major reason many estates are subject to probate. Yet a plan, by itself, is not always enough to avoid probate. Even the most well-intentioned estate plans can go offtrack without careful attention to detail, proper titling, and compliance with state-specific rules.