What is Probate and Why Should I Avoid It?
Probate is the legal process for handling a person’s assets upon their death. While it ensures proper administration, many families aim to avoid it due to its potentially lengthy, public, and costly nature.
Probate is the court process used to transfer someone’s assets after they die, pay final bills and taxes, and formally close the estate. A judge confirms the personal representative (sometimes referred to as executor), oversees required notices, and ensures distributions follow the will or state law if there is no will.
While probate serves an important purpose, many families try to limit or avoid it because it can be time-consuming, public, and costly.
Many clients come to us with concerns about probate. Many have heard horror stories from friends and family. They know enough to know that they want to avoid probate, but they don’t know why or how.
Probate is an administrative process overseen by the court for distributing a person’s assets after death. A common misconception is that having a Last Will and Testament avoids probate. Not true! In fact, wills must go through probate, though the process varies by state.
Regardless of whether a will exists, any assets that don’t transfer directly to named beneficiaries must go through probate. The court also determines whether a will is valid, and if someone challenges it, the court resolves the dispute.
During probate, the court appoints a representative to collect and list the deceased’s assets, pay debts, taxes, and fees, and distribute remaining property to beneficiaries according to state probate law.
Explanation of how probate works (in plain English):
Open the estate: File the will (if any) and petition the court to appoint a personal representative.
Notify parties: Heirs, beneficiaries, and creditors must be notified according to state rules.
Collect & value assets: Identify what the decedent owned and what’s subject to probate.
Pay debts & expenses: Valid creditor claims, taxes, and administrative costs are paid.
Distribute what remains: The court closes the estate after the final accounting.
Important: Estates valued under $40,000 qualify for simplified small estate procedures.
The costs of probate include, among other things, court filing fees, costs for publishing notices in newspapers, and attorney’s and executor’s fees. If the estate is complex, there may also be fees for an accountant.
Probate is a court process and along with the various proceedings and hearings, simply gathering assets and paying off debts of an estate can take months or even years. If any heirs contest the Will, the process becomes even more time-consuming and expensive.
A judge you have never met and who doesn’t know you or your family will ultimately make decisions as to how your assets are distributed.
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.
Some assets bypass and avoid probate automatically, including:
Tip: Whether something avoids probate depends on title and beneficiary designations, not simply what a will says.
You keep control while living; a successor trustee steps in at incapacity or death.
Properly retitle assets to the trust (or name the trust as beneficiary when appropriate).
Benefits: privacy, continuity, and fewer court filings.
Watchouts: funding is essential; unfunded assets may still require probate.
Add or update primary and contingent beneficiaries for life insurance, IRAs/401(k)s, and payable-on-death/transfer-on-death accounts.
Coordinate designations with your overall plan (e.g., to a trust for minor or spendthrift beneficiaries).
Joint tenancy with right of survivorship can avoid probate for the first death, so that the remaining owner takes full ownership upon death.
Related Post: How a Beneficiary Deed Works
Designate beneficiaries as transfer-on-death (TOD) on titles for vehicles, boats, motorcycles, and trailers.
Myth: “A will avoids probate.”
Reality: A will directs probate; it doesn’t avoid it. A trust or beneficiary designations are what typically bypass it.
Myth: “If I have a trust, I’m done.”
Reality: The trust must be funded. Anything left outside the trust may still need probate.
Myth: “Probate is always terrible.”
Reality: For some simple estates, probate can be straightforward. The goal is to choose the least burdensome path for your family.
A well-designed plan can spare your family delays, costs, and headaches. Planning ahead can make a big difference for your loved ones in the future. We help clients create wills and trusts as well as provide them with education on proper beneficiary designations. We also guide families through probate or trust administration when a loved one passes. If you’re unsure what your situation requires, we can review your assets and outline a practical roadmap.
Want to reduce the chance of probate and keep your affairs private? Let our attorneys at Assertion Law Firm LLC discuss the options that fit your goals and conform to the laws of the state of Missouri. Please call our office at (888) 887-4170 or submit a consultation request form if you have any questions about this article.
Probate is the legal process for handling a person’s assets upon their death. While it ensures proper administration, many families aim to avoid it due to its potentially lengthy, public, and costly nature.
