Fee schedules, statutory commission rates, and intestate succession shares vary by state and change through legislative amendment. This article presents verified calculation methodologies rather than point figures; readers should apply each formula using current figures from the named primary source for their state. Nothing here is legal advice.
TL;DR — Quick Verdict
- Intestacy does not eliminate estate costs — it converts a one-time drafting fee into a percentage-based administration cost that scales with estate size. A will priced in the $400–$1,000 range is a fixed cost; probate administration is a variable one.
- In states using statutory percentage commissions, executor and attorney compensation are frequently calculated against the gross estate value, not net equity — meaning a mortgaged home can generate fees on money the family never receives.
- Real property owned in a second state triggers ancillary probate: a separate filing, a separate fee, and often separate counsel in that jurisdiction. Costs multiply per state, not per estate.
- The most damaging intestacy outcome is usually not cost but distribution. Most state schemes split assets between a surviving spouse and descendants, which can force the sale of a home the spouse expected to keep outright.
- Beneficiary designations and jointly titled property pass outside probate regardless of intestacy — meaning a “no will” estate is often a partially intestate estate, with two conflicting distribution systems running at once.
- Recommendation: for anyone with real property, minor children, a blended family, or business interests, the drafting cost is recovered many times over at the first percentage calculation.
Roughly two-thirds of American adults have no will, according to survey research published by Caring.com in its annual Wills and Estate Planning Study. That statistic gets repeated constantly. What almost never follows is the arithmetic — what the absence of a document actually costs the people left behind, in filing fees, statutory commissions, months of court supervision, and assets distributed to people the deceased never intended to benefit.
Dying intestate does not mean the estate escapes cost. It means the estate’s cost structure changes shape. A will drafted through an attorney or a platform like LegalZoom or Trust & Will is a fixed, one-time expense, and will drafting costs by provider type vary less than most people assume. Intestate administration replaces that fixed cost with a variable one — most commonly a percentage of estate value, set by state statute or court approval, paid to an administrator and to counsel.
This article does something the standard “make a will” article does not. It shows the calculation methodology behind each intestacy cost, so you can apply current figures from your own state’s court and probate code and produce a real number for your own estate rather than a national average that describes nobody.
The Four Cost Layers of Intestate Administration
Probate cost is not one number. It is four separate charges stacked on top of one another, each calculated on a different base, and confusing them is why online estimates range from “a few hundred dollars” to “5% of everything.”
Court filing fees come first. These are set by state statute or judicial council schedule and are typically either flat or tiered by estate value. They are the smallest layer and the easiest to verify — every state court system publishes a current fee schedule.
Personal representative compensation is the second layer, and the first variable one. In statutory-commission states, this is a declining-percentage formula applied to estate value. In reasonable-compensation states, the court approves an hourly or negotiated amount. The distinction matters enormously: a percentage formula produces a predictable but often large number, while reasonable compensation produces an unpredictable but frequently smaller one.
Attorney fees form the third layer. Some states permit statutory attorney compensation mirroring the executor schedule — meaning the same percentage is charged twice, once to each party. Others require hourly billing subject to court review.
The fourth layer is everything transactional: bond premiums for an administrator who lacks the will-granted bond waiver, appraisal fees, publication of creditor notice, certified copies, and accounting preparation. Individually small, collectively meaningful.
Cost layer framework compiled from state probate code structures. Verify current figures against your state judicial branch fee schedule and probate code (verify at uniformlaws.org for the Uniform Probate Code baseline adopted in whole or part by roughly a third of states).
Why Gross Value — Not Net Equity — Is the Number That Hurts
Here is the single most expensive misunderstanding in intestate administration. Statutory commission formulas in percentage states are commonly applied to the gross value of the probate estate — the appraised value of assets before subtracting the debt secured against them.
Work through what that means. A decedent owns a home appraised at $600,000 with a $450,000 mortgage outstanding. The family’s actual equity is $150,000. But the commission base is $600,000. Applying a declining-percentage schedule to $600,000 rather than $150,000 does not produce a fee four times larger — it produces something worse, because declining schedules charge the highest percentages on the first tranches of value. The family pays administration costs calculated on money the bank owns.
The methodology to run this for your own estate: obtain your state’s commission schedule, list each probate asset at fair market value without netting secured debt, apply the schedule brackets in sequence, and then check whether your state also permits statutory attorney compensation on the same base. If it does, double the result.
Two structural points follow. First, leverage amplifies probate cost — a heavily mortgaged estate is disproportionately expensive to administer relative to what heirs receive. Second, assets that avoid probate entirely are excluded from the commission base, which is the entire economic argument behind probate avoidance through titling and trusts.
A will does not solve the gross-value problem — a testate estate with a mortgaged home faces the same schedule. What a will does is let you name a representative who serves without bond and, in many families, without commission, and it opens the door to the trust structures that remove the asset from the probate base entirely.
Intestacy Does Not Distribute Your Estate — It Distributes Part of It
Most people picture intestacy as the state deciding where everything goes. That picture is wrong in a way that creates real conflict.
Assets carrying a valid beneficiary designation — retirement accounts, life insurance, transfer-on-death accounts — pass by contract to the named beneficiary, entirely outside the intestate scheme and entirely outside probate court supervision. Property held in joint tenancy with right of survivorship passes to the surviving joint tenant by operation of law. Neither is touched by the state’s intestacy statute.
What remains — solely titled real property, individual brokerage accounts, vehicles, personal property, business interests — is what the intestacy statute actually governs. So the practical result of dying without a will is two distribution systems running simultaneously, and they frequently disagree.
Consider a remarried decedent. The 401(k) beneficiary designation, never updated after the divorce, still names the first spouse. That account passes to the ex-spouse by contract. The intestacy statute, meanwhile, splits the house between the current spouse and the children. Nobody planned either outcome. Both are legally correct. This is the mechanism behind the most common category of beneficiary designation errors that override estate plans, and intestacy makes it worse by removing the coordinating document.
To model your own exposure: inventory every asset, mark each as designation-controlled, survivorship-controlled, or probate-controlled, and confirm that the first two categories name who you actually intend. Only the third category is governed by your state’s succession statute.
Intestate Succession vs. a Simple Will: Which Actually Protects a Surviving Spouse?
Set the cost question aside. The sharper comparison is what each path does to the person most likely to need protection.
Under most state intestacy schemes, a surviving spouse does not inherit the entire estate when the decedent leaves descendants. The statute allocates a share to the spouse and a share to the children — and where the children are from a prior relationship, the spousal share typically shrinks further. Verify your state’s specific allocation in its probate code; the pattern is near-universal but the fractions are not.
The practical consequence lands on the house. If the family home is the dominant probate asset and the statute awards children a fractional interest, the surviving spouse now co-owns their residence with stepchildren who may want liquidity. Partition, buyout, or sale follows. A minor child’s share compounds the problem — it cannot be distributed outright, requiring a court-supervised guardianship of the estate with its own accounting requirements and annual costs until majority.
A simple will reverses all of this. It can leave the entire estate to the spouse outright. It can name a guardian for minor children rather than leaving the selection to a judge weighing competing petitions. It can waive the administrator’s bond and direct that the representative serve without compensation.
Verdict
For any household where a surviving spouse needs to retain the family home, a simple will is not a marginal improvement over intestacy — it is a different outcome. Intestate succession splits the estate by statutory fraction regardless of need; a will directs it by intention. The cost differential between a $400–$1,000 will and intestate administration is real, but it is secondary to the distribution differential. Households with only a spouse, no descendants, and no prior-marriage children face the smallest gap, since many intestacy statutes award the full estate to the spouse in that configuration. Every other family structure faces a material one.
Five Intestacy Assumptions That Cost Families Money
Each of these appears in real administrations. Each has a specific consequence and a specific fix.
Assumption 1: “Everything goes to my spouse automatically.”
Consequence: the statute splits the estate with descendants, potentially forcing sale of the residence. Correct action: verify your state’s spousal share in its probate code, then execute a will directing the full estate to the spouse if that is the intent.
Assumption 2: “My estate is too small for probate to matter.”
Consequence: small-estate procedures exist in every state but are capped by a dollar threshold, and real property frequently disqualifies an estate regardless of total value. Correct action: locate your state’s small-estate affidavit threshold and confirm whether real property is excluded from the procedure — in many states it is.
Assumption 3: “Adding my child to the deed avoids probate.”
Consequence: it does avoid probate for that asset, but it also gifts a present ownership interest, exposes the property to the child’s creditors and divorce proceedings, and forfeits the stepped-up basis on the transferred portion — a capital gains cost that can exceed the probate cost avoided. Correct action: compare against the alternatives in living trust versus will lifetime cost analysis before retitling anything.
Assumption 4: “A will means my family avoids probate.”
Consequence: a will is a probate instrument — it directs the process, it does not bypass it. Families expecting a will to eliminate court involvement are surprised by the timeline. Correct action: if probate avoidance is the goal, the vehicle is a funded revocable trust, and retitling assets into a living trust is the step that actually accomplishes it.
Assumption 5: “I’ll handle it when I’m older.”
Consequence: intestacy risk is not correlated with age — it is correlated with asset ownership and dependents. A 34-year-old with a mortgage and two children carries more intestacy exposure than a 70-year-old renter with adult children. Correct action: treat property purchase, marriage, divorce, and each birth as an execution trigger, and review the standard will update triggers and amendment costs.
Running the Cost Comparison for Your Own Estate
The framework below produces a defensible number using current figures you retrieve yourself. It replaces national averages with your state’s actual schedule.
Methodology developed for this article from the structural elements common to state probate codes. Bracket rates, thresholds, and fee amounts must be retrieved from your state’s current probate code and judicial fee schedule. Uniform Probate Code baseline available at uniformlaws.org.
The Step 6 multiplier deserves emphasis. Real property is administered under the law of the state where it sits. A vacation condo in another state means a second petition, a second filing fee, and frequently local counsel — an entire duplicate cost set for a single asset.
Who Actually Needs More Than a Simple Will?
Not every household needs an elaborate structure. The honest answer is conditional, and overselling trusts to people who do not need them is its own form of cost.
A simple will is sufficient for households with modest, single-state assets, adult and capable beneficiaries, no business interests, and a straightforward family structure. The will names a representative, waives bond, appoints a guardian if needed, and directs distribution. Probate still occurs, but on a small estate with a cooperative family it is administrative rather than adversarial.
A funded revocable trust earns its cost when real property sits in more than one state, when privacy matters because the estate involves a business or a contentious family, or when the probate estate is large enough that percentage-based administration costs exceed trust setup and funding. Comparing structures directly, testamentary versus living trust cost differences turn almost entirely on whether the trust is funded during life — an unfunded trust delivers none of the probate avoidance it was purchased for.
Specialized instruments apply narrowly. A beneficiary receiving means-tested public benefits needs a special needs trust to preserve Medicaid eligibility, because an outright intestate share can disqualify them. A beneficiary with creditor exposure or spending difficulties is the case for a spendthrift trust with distribution controls. Neither structure can be created after death, which is the defining limitation of intestacy: it offers no protective mechanisms whatsoever.
Worth stating plainly — the marginal cost of moving from no document to a simple will is the highest-return step in this entire sequence. Everything past that point is optimization.
Frequently Asked Questions
Does the state take my estate if I die without a will?
Almost never. Escheat to the state occurs only when no living relative can be located within the degrees of kinship specified by the state’s intestacy statute — a genuinely rare outcome. The realistic risk is not confiscation but misallocation: the statute distributes to relatives in a fixed order that may not match your intentions, particularly in blended families. Verify your state’s specific succession order in its probate code.
How long does intestate administration take compared to testate probate?
Intestate estates generally run longer. The court must first appoint an administrator — a step a will eliminates by naming an executor — and competing petitions among relatives can add months before administration even begins. Both paths then share the same mandatory creditor claim period, which is set by state statute and cannot be shortened. Check your state’s creditor claim period as the floor for any timeline estimate.
Can my family just skip probate if the estate is small?
Possibly, through a small-estate affidavit or summary administration. Every state offers some version, but each sets a dollar threshold, and many exclude estates containing real property regardless of total value. Retrieve two figures from your state’s probate code: the current small-estate threshold, and whether real property disqualifies the procedure. That second answer determines eligibility for most homeowners.
Do online will platforms produce valid wills?
A properly executed platform will is generally valid where state execution requirements — witnessing, and notarization if required — are met. Execution defects, not drafting defects, cause most failures. Platforms handle simple estates adequately; blended families, business interests, and special needs beneficiaries exceed their design. See the detailed online will platform versus attorney comparison for where the line falls.
Is a handwritten will better than no will?
Only in states recognizing holographic wills, and the requirements are strict — typically that material provisions be in the testator’s own handwriting and signed. States that do not recognize them treat the document as void, producing full intestacy. Given that attorney-drafted wills start around $400 and platform wills cost less, the holographic route trades a small saving for a significant validity risk.
How We Researched This Article
This article presents verified calculation methodologies rather than point figures, a deliberate choice driven by the volatility of the underlying data. State probate filing fees, statutory commission schedules, small-estate thresholds, and intestate succession fractions are set by individual state legislatures and judicial councils, amended on independent schedules, and in several states adjusted annually. Any specific dollar figure published here would be accurate for a subset of readers and misleading for the rest.
The structural framework — the four-layer cost model, the gross-versus-net commission base analysis, the probate-versus-non-probate asset classification, and the seven-step comparison worksheet — derives from elements common across state probate codes, including those of states adopting the Uniform Probate Code in whole or in part. The Uniform Law Commission publishes the current UPC text and a jurisdiction-by-jurisdiction adoption map, which is the correct starting point for determining which structural model your state follows. For federal estate tax thresholds relevant to larger estates, the Internal Revenue Service publishes the current basic exclusion amount and annual inflation adjustments. The Consumer Financial Protection Bureau maintains guidance on managing a deceased person’s accounts and creditor communications during administration.
The intestacy prevalence figure cited in the introduction comes from Caring.com’s annual Wills and Estate Planning Study, a survey instrument with the sampling limitations inherent to self-reported survey research — respondents may misreport whether a document exists or is validly executed. It is directional, not precise.
Every cost element in this article is modeled, not measured. The worksheet produces an estimate that depends entirely on the accuracy of the figures the reader retrieves and on the valuation of assets at the time of death. It does not account for litigation costs from a contested administration, extraordinary compensation awarded for unusual services such as business liquidation or tax controversy, or state estate and inheritance taxes, which exist in a minority of states with independent thresholds. Readers with estates approaching any tax threshold, business interests, or family conflict should treat the worksheet as a floor rather than a projection.
Research for this framework was last conducted in July 2026. All figures were verified against named primary sources before publication.