How to Avoid Probate
Understanding why avoiding probate is important can help you ensure your estate is managed smoothly and efficiently.
Probate is a legal process that many families dread. It can be slow, costly, and public which is exactly why many people want to take steps now to avoid it. In this expanded guide, we’ll explain what probate is, why it happens, common planning tools, how asset ownership matters, and practical strategies families can use to keep more of their wealth out of court.
One common misconception is that simply having a will avoids probate. It does not. A will is a legal document that states how you want your assets distributed, but in most cases, a will still must be submitted to probate court to take effect.
Because of this, a will alone generally does not help a family avoid probate. It provides guidance and legal authority, but the probate process is often required to implement its terms.
That said, a will remains an important tool in estate planning. It can serve as a good backup plan in the event anything does not avoid probate. But if your goal is to avoid probate for assets, additional strategies are often needed.
The good news is avoiding probate doesn’t have to be difficult. There are simple and effective ways to ensure that all of your property passes directly to your heirs. Keep reading to learn more about how to avoid probate.
Probate is the process by which a court oversees the administration of a person’s estate after death. During probate, the court validates the will (if there is one), inventories assets, settles debts and taxes, and ultimately distributes property to heirs according to the will or state law.
For many families, probate slows down access to assets, creates additional expense, and makes otherwise private family matters a matter of public record. Probate timelines vary, but even relatively simple estates can take several months or longer to complete. Court filings and proceedings are generally available for public inspection, which means personal financial details become accessible to anyone who asks.
This is why many people pursue planning strategies designed to minimize probate exposure. The goal is to allow assets to pass directly to beneficiaries with minimal court involvement, reducing stress, delay, and expense for loved ones at a difficult time.
It’s important to note that not all estates require probate, and avoiding probate entirely is not always necessary or even the best choice for every family. The “right” approach depends on your goals, the complexity of your assets, and your personal priorities, including privacy, simplicity, and control.
When people talk about avoiding probate, what they usually mean is making sure that assets transfer outside of the probate process so loved ones can receive them quickly and with minimal hassle. There are several common strategies for doing that:
One of the most powerful tools for probate avoidance is a trust, particularly a revocable living trust. A trust is a legal entity you create to hold and manage assets during your lifetime and beyond. When you create a trust, you appoint a trustee to manage the assets according to your instructions. Many people choose to serve as trustee during their lifetime and name a successor trustee to take over when they pass away or become incapacitated.
A revocable living trust is created when the person or persons creating the trust are the sole beneficiaries during their lifetime. The creator reserves the right to revoke it or make changes. The person creating the trust usually chooses to also serve as their own trustee and remain in charge until they are no longer able to do so, such as if their cognitive abilities or physical health declines to the point where they are not able to function normally in day-to-day tasks.
A properly funded trust can allow assets held in the trust to pass directly to beneficiaries without the need for probate. Trusts can be especially useful for individuals with more complex situations such as blended families, real estate holdings, or a desire for greater privacy.
However, simply signing a trust document is not enough. To actually avoid probate, the trust must be properly funded. Funding means changing the ownership or title of your assets so they belong to the trust. This can include real estate, investment accounts, bank accounts, vehicles, and more.
Failing to fund a trust is a common mistake. If assets are not retitled in the trust’s name, those assets may still go through probate as if no trust existed.
Additionally, to avoid probate, you must transfer assets upon the death of the owner to someone (or to a trust). Transfers of assets can be set up to take effect only at the death of the owner and either work in conjunction with a trust or operate outside of any will or trust created by that person. These certain types of assets allow direct transfer to named beneficiaries when you pass away:
Payable-on-death (POD) designations for bank accounts.
Transfer-on-death (TOD) registrations for investment accounts and vehicles.
Beneficiary designations on retirement accounts such as IRAs and 401(k)s.
Life insurance policies with named beneficiaries.
When an asset has a valid beneficiary designation, the asset typically transfers directly to that person (or entity) when you die, outside of probate. This can streamline matters and keep assets out of court.
However, these designations must be kept up to date. If a beneficiary predeceases you or if your family situation changes (such as through divorce or remarriage), an outdated beneficiary can lead to confusion or unintended outcomes, including the possibility that the asset reverts to your probate estate.
Certain forms of joint ownership can allow assets to pass automatically to the surviving owner, such as joint tenancy with rights of survivorship. This can be useful for real estate and accounts held jointly with another person. When one of the owners dies, the property automatically goes to the other joint owner, with no probate involved.
However, joint ownership carries its own considerations. It can have unintended tax consequences and may expose the asset to the co-owner’s creditors. Because of this, it’s important to think carefully before using joint ownership primarily to avoid probate.
Even when people think they’ve planned effectively, probate can still occur because of simple oversights:
Trusts that are never funded.
Beneficiary designations that are missing or outdated.
Assets owned in a way that don’t match the rest of the estate plan.
Failure to coordinate documents with beneficiary forms.
Unintended joint ownership that complicates matters.
The key is regular review every couple of years and any time a major life event occurs, such as marriage, divorce, birth, or death.
Does having a will keep assets out of probate?
Not usually. A will still typically goes through probate. It guides distribution but does not prevent the process.
Are trusts only for wealthy people?
No. While trusts are often used by people with larger or more complex estates, they can be helpful for anyone who wants greater control, privacy, or smoother transfer of assets.
If I name a TOD or POD beneficiary, do I still need a trust?
It depends on your situation. TOD and POD designations can be effective for simple assets, but a trust offers additional flexibility and stronger planning for incapacity and distribution control.
Estate planning is not one-size-fits-all. To determine the best approach for your family and your goals, it’s wise to speak with an experienced estate planning attorney. Small adjustments now can prevent significant stress for your loved ones later.
At our law firm, we can help you understand the difference between a will and a trust and how to properly title assets to help plan for the future of your estate. We will work with you and help you achieve peace of mind knowing how to structure your assets and avoid probate.
Please call our office at (888) 887-4170 if you have any questions or if you’d like a consultation with one of our attorneys.
Understanding why avoiding probate is important can help you ensure your estate is managed smoothly and efficiently.
