When someone passes away, their family is often left not only with grief but also left entangled in a legal truth is that for most families, probate is a process best avoided.
What Is Probate, and Why Does It Matter?
Probate is a court process that oversees the distribution of a deceased person’s assets. If you have a Last Will and Testament, it guides the court in carrying out your wishes. If you die without a will, state intestacy laws decide who gets what.
At first glance, this may not seem like a big deal. Isn’t probate just the legal system making sure everything is handled correctly?
Yes, but at a cost. Probate can take months (sometimes more than a year), involve significant legal and court fees, and expose your family’s financial affairs to the public record. For heirs, this can be frustrating, confusing, and emotionally draining.
Key Reasons to Avoid Probate
Here are the four biggest reasons families choose to structure their estate plans to avoid probate:
1. Probate Takes Too Long
Probate is rarely quick. Even simple estates can take six months to a year to settle. Complex estates, disputes between heirs, or creditor claims can drag the process out even longer.
For families who need access to funds—say, to pay a mortgage, tuition, or day-to-day living expenses, this delay can cause real hardship.
2. Probate Is Expensive
Court filing fees, executor fees, appraisals, and attorney costs can quickly add up. These expenses are paid out of the estate, reducing what is ultimately passed on to heirs.
For modest estates, the costs can consume a significant percentage of the inheritance. Even for larger estates, the wasted expense is frustrating, especially when there are legal tools that can transfer assets much more efficiently.
3. Probate Is Public
One of the least understood aspects of probate is that it is a public proceeding. This means that anyone can access information about your estate—what you owned, what debts you had, and who received your assets.
For many families, especially business owners or high-net-worth individuals, this lack of privacy is a major concern. Avoiding probate helps keep family matters out of the public eye.
4. Probate Is Stressful for Loved Ones
Grieving is hard enough. Adding court deadlines, paperwork, creditor notices, and potential conflicts between family members only compounds the emotional toll.
By planning ahead to avoid probate, you give your family a gift: the ability to focus on healing and moving forward, instead of being tied up in legal red tape.
Proven Strategies to Avoid Probate
The good news? Probate is not inevitable. With thoughtful estate planning, you can pass your assets to your loved ones quickly, privately, and without unnecessary court involvement. Here are some of the most effective strategies:
Joint Ownership with Rights of Survivorship
When you co-own property, such as a home or a bank account, with another person under a “right of survivorship,” that property passes directly to the surviving owner upon your death.
This can be a simple way for spouses to avoid probate. However, it’s important to remember that joint ownership also gives the other owner full access and control during your lifetime, which may not always be ideal.
Beneficiary Designations
Certain accounts allow you to name beneficiaries directly. Examples include:
Life insurance policies
Retirement accounts (401(k), IRA)
Annuities
Upon your death, these assets transfer directly to the named beneficiaries, bypassing probate. The key here is keeping these designations up to date, something many people overlook after major life events such as divorce, remarriage, or the birth of a child.
Payable-on-Death (POD) Accounts
Banks often allow you to add “payable-on-death” instructions to checking or savings accounts. During your lifetime, you remain in full control of the account. At your death, the funds transfer automatically to the named beneficiary without probate.
Transfer-on-Death (TOD) Registrations
Similar to POD accounts, TOD registrations can be used for securities, brokerage accounts, and even vehicles or real estate in some states. This is another simple, inexpensive way to pass property directly to heirs.
Revocable Living Trusts
Perhaps the most powerful tool to avoid probate is a revocable living trust. With this strategy, you transfer ownership of your assets into a trust during your lifetime. You remain in control as the trustee, and you can amend or revoke the trust at any time.
Upon your death, the assets in the trust pass directly to your chosen beneficiaries without probate.
Trusts offer additional benefits, such as:
Greater privacy (they are not public record).
Flexibility to manage assets during your lifetime.
Ability to control how and when beneficiaries receive their inheritance (for example, staggered distributions for children).
Because of their flexibility and effectiveness, revocable living trusts are often the cornerstone of a well-crafted estate plan.
Avoiding Costly Mistakes
While these strategies sound simple, the reality is that mistakes are common and they can send your assets straight into probate despite your best intentions.
Examples include:
Failing to update beneficiary designations after life changes.
Setting up a trust but never transferring (or “funding”) assets into it.
Relying on joint ownership without considering tax or liability implications.
That’s why working with an experienced estate planning attorney is critical. A lawyer can:
Ensure your documents are legally valid in your state.
Coordinate all parts of your plan so they work together.
Help you avoid common pitfalls that can unravel your intentions.
At Gertsburg Licata, we don’t just draft documents, we create tailored plans that reflect your values, protect your assets, and make life easier for the people you love most.
Contact Gertsburg Licata Co., LPA at (216) 573-6000 or at [email protected] to start a conversation.
