Last reviewed: July 4, 2026
Dying without a will in the United States means you die "intestate," and state law takes over the distribution of your property. The court decides who gets what, and the process often takes longer and costs more than it would with a proper estate plan. If you have minor children, the court also decides who becomes their guardian without your input.
Estate planning gives you control. A basic plan includes a will or trust, a financial power of attorney, and an advance healthcare directive. These documents work together to make sure your wishes are followed both during your lifetime and after your death. According to a 2024 survey by Caring.com, only 46% of Americans have a will or living trust, meaning more than half the country is leaving their estate to chance.
The right plan depends on your assets, family situation, and goals. A young couple renting an apartment needs a simpler plan than a retiree who owns property in two states. But everyone benefits from having something in place rather than nothing at all.
Many people confuse wills and trusts or assume they are interchangeable. They are not. A will is a document that directs how your assets should be distributed after you die. A trust is a legal arrangement where a trustee holds and manages assets for the benefit of your chosen beneficiaries. Both can work together as part of a complete estate plan.
| Feature | Will | Living Trust |
|---|---|---|
| When it takes effect | After death only | Immediately upon creation |
| Goes through probate | Yes | No |
| Typical cost | $200-$2,000 | $1,000-$3,000 |
| Public record | Yes, filed with court | No, remains private |
| Asset protection | Limited | Stronger (especially irrevocable) |
| Incapacity planning | Cannot manage assets if you are incapacitated | Successor trustee steps in automatically |
| Challenge difficulty | Easier to contest | Harder to contest |
| Out-of-state property | Requires probate in each state | No additional probate needed |
One common approach is to create a living trust for your major assets and a "pour-over will" as a backup. The pour-over will catches any assets you forgot to transfer into the trust and directs them into it after your death. This combination gives you the probate avoidance of a trust with the safety net of a will.
A will must meet specific legal requirements to be valid. The requirements vary by state, but most follow these general principles:
A will does not cover assets that pass outside of it, such as life insurance proceeds, retirement accounts with named beneficiaries, or jointly owned property with rights of survivorship. Make sure your beneficiary designations on these accounts are current and consistent with your overall estate plan.
A revocable living trust is the most common type of trust used in estate planning. You create the trust during your lifetime, transfer your assets into it, and serve as your own trustee. You retain full control to buy, sell, and manage the assets just as you did before. When you die, your successor trustee distributes the assets according to your instructions, without court involvement.
Probate is the court-supervised process of distributing a deceased person's assets. It validates the will (if one exists), pays debts and taxes, and transfers property to beneficiaries. The probate court oversees the entire process to ensure everything is handled correctly.
The entire process typically takes 6-18 months for straightforward estates. Complex estates with disputes, business interests, or property in multiple states can take years. According to the American Bar Association, probate costs consume an average of 3-7% of the estate's value when you factor in court fees, executor fees, attorney fees, and appraisal costs.
Some states have simplified probate procedures for small estates. For example, California allows a simplified process for estates under $184,500 (as of 2024), and Texas offers a small estate affidavit for estates under $75,000. These thresholds vary widely, so check your state's specific rules.
A power of attorney (POA) authorizes someone else to act on your behalf. A "durable" POA remains in effect even if you become mentally incapacitated. This document is essential because a will only works after death, and a trust only covers assets titled in the trust's name.
This document allows your appointed agent to handle financial matters such as banking, real estate transactions, tax filings, and investment management. Without it, your family would need to petition the court for a conservatorship if you became incapacitated, which is expensive and time-consuming.
Sometimes called a medical POA or healthcare proxy, this document names someone to make medical decisions for you if you cannot communicate. It often includes a living will that specifies your wishes regarding life-sustaining treatment, organ donation, and end-of-life care.
Both documents should be created before you need them. Once you lose capacity, you can no longer legally execute these documents.
The federal estate tax applies to estates that exceed the exemption amount. For 2026, the exemption is projected to be approximately $13.61 million per individual and $27.22 million for married couples. This means the vast majority of Americans (over 99.9%) will never owe federal estate tax.
| Estate Value | Federal Estate Tax | Notes |
|---|---|---|
| Under $13.61M | $0 | No federal estate tax owed |
| $13.61M - $15M | ~$556K - $1.2M | Marginal rate of 18-40% |
| $15M - $20M | ~$1.2M - $2.8M | Top rate of 40% applies |
| Over $20M | 40% of amount over $13.61M | Top marginal rate |
Twelve states and the District of Columbia have their own estate or inheritance taxes, with exemption amounts much lower than the federal level. For example, Oregon taxes estates over $1 million. Maryland has both an estate tax and an inheritance tax. If you live in one of these states, your estate could face state taxes even if no federal tax is owed.
| State | Estate Tax Exemption | Inheritance Tax |
|---|---|---|
| Oregon | $1,000,000 | No |
| Massachusetts | $2,000,000 | No |
| New York | $7,160,000 (2026 est.) | No |
| Washington | $2,193,000 | No |
| Illinois | $4,000,000 | No |
| Maryland | $5,000,000 | Yes (some heirs) |
| Pennsylvania | No estate tax | Yes (some heirs) |
| New Jersey | No estate tax (repealed 2018) | Yes (some heirs) |
Source: IRS Estate Tax Information and IRS Publication 559 - Survivors, Executors, and Administrators.
Estate planning laws vary significantly by state. Community property states (such as California, Texas, Arizona, and Washington) treat marital property differently from common law states. Some states recognize handwritten wills; others do not. Probate procedures, small estate thresholds, and state estate taxes all differ.
If you move to a different state, have your estate plan reviewed by a local attorney. A will valid in one state is generally valid in another, but state-specific provisions may not carry over. This is especially important for community property states, where spouses have different rights to property acquired during marriage.
| Service | Cost Range | Best For |
|---|---|---|
| DIY will (online) | $50-$200 | Simple estates, no minor children |
| Attorney-drafted will | $300-$1,000 | Standard estates with clear beneficiaries |
| Living trust (online) | $300-$800 | Simple estates wanting probate avoidance |
| Attorney-drafted trust package | $1,500-$3,000 | Complex estates, multiple beneficiaries |
| Comprehensive estate plan | $2,000-$5,000 | High-net-worth, blended families, business owners |
| Probate attorney fees | 3-7% of estate | Required if no trust exists |
Review your estate plan every 3-5 years, and update it immediately after any of these events:
If you die without a will, you are considered "intestate," and your state's intestacy laws determine who receives your assets. Typically, your spouse and children are first in line, followed by parents and siblings. If you have no living relatives, the state may claim your property. The court also appoints an administrator for your estate and a guardian for your minor children. The process usually takes longer and costs more than probate with a valid will. You can learn more at USA.gov State Courts.
No, a lawyer is not legally required. You can create a valid will using online services or templates if your situation is simple. However, if you have significant assets, a blended family, children from multiple relationships, or property in multiple states, working with an estate planning attorney is strongly recommended. Mistakes in a DIY will can lead to disputes, delays, and extra costs that far exceed the price of professional help.
A revocable living trust typically costs $1,000 to $3,000 when set up through an attorney. Online services charge $300 to $800. The total cost depends on the complexity of your estate and whether you need additional documents like a pour-over will, financial power of attorney, or healthcare directive. Remember that the upfront cost is often less than what probate would cost your family later.
Yes, a will can be contested on grounds such as lack of testamentary capacity, undue influence, fraud, or improper execution. Will contests are relatively rare but can delay probate by months or even years and cost tens of thousands of dollars in legal fees. Living trusts are generally harder to contest because the trust was established and managed during your lifetime, not created at death.
The federal estate tax exemption for 2026 is approximately $13.61 million per individual and $27.22 million for married couples. Estates valued below these thresholds owe no federal estate tax. The top marginal rate on amounts above the exemption is 40%. Note that the exemption is scheduled to decrease significantly after 2025 under current law, so check with a tax professional for the latest figures. See IRS Estate Tax for official information.
A revocable living trust does not protect assets from creditors during your lifetime because you retain control over the trust. Creditors can reach assets in a revocable trust just as they can reach assets you own directly. Irrevocable trusts can offer creditor protection, but you give up control over the assets placed in them. If creditor protection is a primary goal, talk to an attorney about whether an irrevocable trust makes sense for your situation.
Ask the AI legal advisor to find out which estate planning option fits your situation, or consult a licensed estate planning attorney in your state.