Why Avoid Probate?

You’ve probably heard that you should avoid probate if possible. Indeed, the word “probate” has almost become a dirty word in the world of estate planning, but is its bad reputation warranted?

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.

What is probate?

Probate is the court-supervised process of settling a decedent’s 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 estate’s affairs. The duties of the personal representative include paying estate debts, taxes, and fees; gathering the decedent’s assets; and eventually distributing the decedent’s assets to heirs according to the will.

Why avoid probate?

The two main reasons to avoid probate are the time and money it can take to complete.

Remember that 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.

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. The court already takes a portion of the value of the estate to cover probate fees, but if a probate attorney also gets involved, you are looking at even more expenses, which only further cut into the heirs’ inheritance.

Another reason you might want to avoid probate is if you’d 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 estate’s assets—including 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 grantor’s instructions after the grantor’s 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:

• Holding property jointly so that the other owner takes full ownership upon death (e.g., joint tenancy with a right of survivorship, tenancy by the entirety, community property in community property states);
• Designating beneficiaries on life insurance and retirement accounts, to whom benefits pass directly upon death; and
• Designating beneficiaries on pay-on-death (POD) bank accounts or transfer-on-death (TOD) investment accounts.

Final thoughts on avoiding probate

It is important to note that some states do have shorter, less complicated, and faster probate processes for estates under a certain value. Accordingly, whether or not you should aim to avoid probate depends on your specific circumstances.

By creating a living trust, you can help your family avoid probate when you pass away. LegalZoom can help you create a living trust online in three simple steps. Want to confirm which estate planning documents are needed for your situation? Use our Estate Plan Tool. Ready to build your estate plan? LegalZoom can help. We’re bundling all of the key documents—last wills or a living trust, power of attorney, a living will, and independent attorney advice at an affordable price.