Have you ever wondered what happens to your stuff after you’re gone? If you don’t plan carefully, your loved ones might end up dealing with something called “probate” – a word that makes many estate planning experts cringe I’ve researched this topic extensively, and today I’m sharing why avoiding probate might be one of the best gifts you can give your family
What Is Probate Anyway?
Before diving into why you should avoid it let’s clarify what probate actually is. Probate is the court-supervised process of validating a deceased person’s will paying their debts, and distributing their remaining assets to heirs. It’s a legal procedure that authenticates your will, appoints an executor, and ensures your assets get distributed according to your wishes.
The process typically involves:
- Filing the will with the probate court
- Appointing a personal representative or executor
- Gathering assets and creating an inventory
- Paying debts and taxes
- Distributing remaining assets to heirs
Sounds straightforward, right? Well, not exactly. Many people try very hard not to go through probate with their wills for a number of strong reasons.
5 Major Reasons to Avoid Probate
1. Save Your Family Time (Lots of It)
One of the biggest downsides to probate is just how long it takes. According to the American Bar Association, the average probate case takes between six and nine months to complete. However, if the estate is complex or there are disputes among heirs, it can drag on for years!
During this waiting period, your assets are essentially frozen in a legal limbo. Your beneficiaries won’t receive their inheritance until the entire process is completed. This means that the people you want to help might be waiting months or even years before they can access what you’ve left them.
As John W. As Crow Estate Planning says, “a long probate process means that loved ones may have to keep facing their grief or deal with things that bring it back to the surface.” This delay could have a big effect on dependents who were counting on their inheritance to pay for things like college.
2. Save Your Estate Money
It takes a lot of time and money to go through probate. The costs can really cut into your estate, leaving less for your family and friends.
Here’s what eats away at your estate during probate:
- Court filing fees: These typically range from $45 for small estates to $1,250 for high-value estates
- Attorney fees: Legal help during probate can cost hundreds to thousands of dollars
- Executor fees: The person managing your estate deserves compensation for their time
- Additional administrative costs: Appraisals, accounting fees, etc.
According to AARP estimates cited in the LegalTemplates source, the average cost of probate is around $1,500. But for larger estates or complicated situations, these costs can climb much higher.
By planning ahead to avoid probate, you’re essentially protecting more of your assets so they can go to the people you love instead of being drained by legal and administrative fees.
3. Keep Your Family’s Financial Affairs Private
People who are neighbors, distant relatives, or even strangers can look up information about your assets, debts, and who got what from your estate after you die. This is because probate proceedings are part of the public record.
As LegalZoom points out, “Probate is a public process, which means all proceedings become part of the public record and anyone can go, search, and find information about the distribution of an estate’s assets—including their value and to whom they have been given.”
For many families, this lack of privacy is concerning. Most of us don’t want our financial affairs broadcasted to the public. By avoiding probate, you help ensure that your family’s financial matters remain private.
4. Reduce Emotional Stress for Your Loved Ones
Dealing with the loss of a loved one is already emotionally devastating. Adding the complications, paperwork, and potential conflicts of probate can make this time even more difficult.
Crow Estate Planning emphasizes that “a probate process that drags out for months or years can be emotionally challenging for loved ones.” When probate extends the grieving process, it can hinder emotional healing and closure for your family members.
Additionally, if probate leads to disputes among family members (which unfortunately happens more often than you might think), these conflicts can permanently damage relationships between the very people you care about most.
By taking steps to avoid probate, you’re helping to reduce the stress and potential for conflict during an already difficult time.
5. Get Assets to Your Heirs Faster
When assets go through probate, there’s an inevitable delay before your beneficiaries can access them. However, assets that bypass probate can often transfer to your loved ones immediately or very quickly after your passing.
For example:
- Assets in a living trust transfer according to your instructions without court involvement
- Joint accounts typically pass automatically to the co-owner
- Life insurance policies with named beneficiaries pay out directly without probate
- Payable-on-death accounts transfer immediately to the designated person
This quick transfer can be crucial if your heirs need funds for immediate expenses or if they were financially dependent on you.
How Can You Avoid Probate?
Now that you understand WHY avoiding probate is beneficial, let’s talk about HOW to do it. Here are the most effective strategies:
1. Create a Living Trust
A living trust is perhaps the most comprehensive way to avoid probate. When you create a trust, you transfer ownership of your assets to the trust while maintaining control of them during your lifetime. Since the trust owns the assets, not you personally, they don’t go through probate when you die.
The trustee you designate will distribute these assets according to your instructions without court involvement. This provides privacy, speed, and potentially significant cost savings for your heirs.
2. Hold Property Jointly
Joint ownership with right of survivorship means that when one owner dies, the surviving owner automatically receives full ownership without probate.
Common forms include:
- Joint tenancy with right of survivorship
- Tenancy by the entirety (for married couples in some states)
- Community property with right of survivorship (in community property states)
This is a simple solution for married couples and can work well for specific assets like your home or bank accounts.
3. Designate Beneficiaries on Financial Accounts
Many financial accounts allow you to name beneficiaries who will automatically receive the assets upon your death:
- Retirement accounts (401(k)s, IRAs)
- Life insurance policies
- Bank accounts (through payable-on-death designations)
- Investment accounts (through transfer-on-death designations)
These designations supersede what’s in your will and allow assets to transfer without probate.
4. Make Transfer-on-Death Deeds for Real Estate
In many states, you can now use a transfer-on-death deed for real estate. This allows you to name someone to receive your property after death while maintaining complete control during your lifetime. It’s like a beneficiary designation for your home.
5. Gift Assets During Your Lifetime
You can also avoid probate by giving away assets while you’re still alive. For 2025, you can give up to $19,000 per person per year without triggering gift tax consequences.
Keep in mind though, that this means giving up control of the assets now, which isn’t always practical or desirable.
Is Avoiding Probate Right for Everyone?
While avoiding probate offers many benefits, it’s not necessarily the right choice for everyone. Some factors to consider:
- Estate size: Some states have simplified probate procedures for small estates. If your estate falls below your state’s threshold, probate might not be as burdensome.
- Estate complexity: If you have a straightforward estate with few assets and clear beneficiaries, probate might be manageable.
- Cost of avoidance: Some probate-avoidance strategies have upfront costs or ongoing maintenance requirements.
- Your state’s laws: Probate procedures and costs vary significantly by state.
Final Thoughts
Avoiding probate is generally beneficial for most people and their heirs. By planning ahead, you can save your loved ones time, money, stress, and privacy concerns during an already difficult period.
The best approach is typically to work with an experienced estate planning attorney who can help you understand your options based on your specific situation. While there are DIY estate planning tools available, working with a professional ensures that you don’t miss valuable opportunities to protect your assets and your family.
Remember, good estate planning isn’t just about what happens to your stuff—it’s about making things easier for the people you love. Avoiding probate is one important way to do just that.
Have you started planning your estate to avoid probate? What strategies are you considering? I’d love to hear your thoughts in the comments below!
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult with a qualified attorney for advice specific to your situation.
ContentsUpdated on: January 22, 2025Read time: 3 min
Youâve probably heard that you should avoid probate if possible. In fact, “probate” has almost become a swear word in the estate planning world. But is its bad name really deserved?
For the most part, yes, but read on for more information about what probate is, why you might want to avoid it, and how to do so.
Probate is the court-supervised process of settling a decedentâs estate and distributing his or her property to heirs.
All wills go through probate, though the specific process varies by jurisdiction. Generally, in order to probate a will, the document is filed with the probate court, which appoints a personal representative to handle the estateâs affairs. The duties of the personal representative include paying estate debts, taxes, and fees; gathering the decedentâs assets; and eventually distributing the decedentâs assets to heirs according to the will.
The two main reasons to avoid probate are the time and money it can take to complete.
Keep in mind that probate is a court process. It can take months or even years just to collect an estate’s assets and pay off its debts, not to mention all the court proceedings and hearings.
Why does this matter? Well, it probably does to the heirs. While an estate is in probate, the heirs will not see anything in the form of inheritance. The probate process can take even longer if the will or any provisions in it are contested.
Along with the slow wheels of the administration come added costs involved in settling an estate. There are already court fees that take a cut of the estate’s value to cover probate, but if you hire a probate lawyer on top of that, you’ll have even more costs that will come out of the heirs’ inheritance.
Another reason you might want to avoid probate is if youâd prefer to keep your financial affairs private. Probate is a public process, which means all proceedings become part of the public record and anyone can go, search, and find information about the distribution of an estateâs assetsâincluding their value and to whom they have been given.
How to avoid probate
As you can see, avoiding probate is often preferable, and the only way to do that is to have your assets pass directly to your heirs. There are several ways to accomplish this, but one of the easiest is to create a living trust.
In a living trust, the grantor (person writing the trust) funds it by putting assets she chooses into it; they retain control over those assets until their death. The grantor also chooses a successor trustee, who will distribute the trust property according to the grantorâs instructions after the grantorâs death.
Notice there was no mention of probate because with a living trust, all of this happens without involving the probate court or probate law.
Other ways to avoid probate include the following:
- Having a joint ownership of property so that the other owner gets full ownership when you die (e g. sharing a home with someone else with the right to inherit, renting out the whole house, and in states where community property is the law,
- Choosing beneficiaries on retirement and life insurance plans so that benefits go directly to those people when the policyholder dies; and
- Choosing who will get money from pay-on-death (POD) or transfer-on-death (TOD) investment accounts
What does it mean to Avoid Probate?
FAQ
What are the advantages of avoiding probate?
Benefits of Avoiding Probate Through Estate PlanningAllow Your Beneficiaries to Receive Assets Sooner. Keep Overall Costs Down. Give Your Loved Ones a Way of Avoiding the Stress of the Probate Process. Contact a Summit, New Jersey Estate Planning Attorney. Source:
Why do people not want to go through probate?
Probate can make disagreements more likely. Anxious family members or creditors may contest the will or the distribution of assets, which can lead to expensive court cases and emotional upheaval.
Why would a will not need to be probated?
Is probate necessary? If the person who died did not have any property to transfer, probate is usually not necessary.
What are the disadvantages of going through probate?
The primary disadvantages of probate are that it can be costly due to attorney and court fees, time-consuming as it can take months or even years, and public, turning private financial information into public record.