How to Avoid Probate (With or Without an Attorney)

You’ve probably come here looking for resources on how to avoid probate. I’m going to tell you how to do just that. I will discuss the various tools that people use to avoid probate and let you know the pros and cons of each of the tools (Spoiler alert: Your best bet is probably a living trust).  But before I do, let me take a minute to explain what probate is and why you might want to avoid it.

What is Probate?

Probate is a court-supervised process for transferring the assets of a deceased person (called a decedent) to the people or organizations that are entitled to the assets. The process can vary depending on whether or not you have a valid Last Will and Testament.

• If you do not have a valid Last Will and Testament, your assets will be distributed among a group of your relatives as determined by state law.  In that case, you will be said to have died intestate (without a Will) and the people who receive your assets are called heirs at law.
• If you have a Last Will and Testament (you should), the people or organizations named in the Will are entitled to the assets. Those people or organizations are called beneficiaries and you will be said to have died testate (with a Will).

Note:  Many people are under the mistaken impression that having a Will avoids probate.  That is not the case.  In fact, the term probate comes from a Latin word meaning “to prove” (or establish the validity of) a Last Will and Testament.  There are many reasons why you should have a Will, but having a Will does not avoid probate.

Depending on your state, probate can be a long process involving complicated legal issues.  Some states (such as Florida) require you to hire an attorney to help navigate the process.  But even in states that do not legally require you to hire an attorney, the process is usually too complex for most laypeople to handle.

Why Would Anyone Want to Avoid Probate?

There are many reasons why people want to avoid probate. Some of the most common are:

1. Saving Money.  Probate can be expensive, often costing thousands of dollars in legal fees.  The larger and more complex the estate, the higher the legal fees.
2. Minimizing Hassle.  Probate is time-consuming.  Your executor must inventory estate assets, file accountings with the court, notify (and possibly negotiate with) creditors of the estate, open estate bank accounts, and transfer assets to your heirs or beneficiaries. This can be quite a burden on the friend or family member who is handling the estate.
3. Avoiding Delay. Probate ties up your assets in court.  Courts are reluctant to allow assets to be transferred until the estate is closed.  At a minimum, the executor must wait until all creditors have had a chance to submit claims, a process which could take several months.  This delays the distribution of your assets to your heirs or beneficiaries.
4. Protecting Privacy. Once your estate is opened with the Court, it becomes a matter of public record.  Anyone who wishes can go to the courthouse and obtain a copy of your Will.  Some people would prefer to keep the final disposition of their assets private.

These are all valid reasons for avoiding probate.  But not all of them apply in every case.  Before you ask how to avoid probate, be sure that it’s something you need to do.  The truth is that probate avoidance is not for everyone.  To make an informed decision, you need accurate information.  Consider:

1. Probate Avoidance Costs Money. To avoid probate, you will most likely need a living trust and a handful of related documents.  Depending on whether you use an attorney or an online form provider, these documents can be expensive to prepare.  If you are basing your decision on cost alone, you should compare these costs with the cost of probate in your state.
2. Probate Avoidance Can Itself Be a Hassle. Probate avoidance requires a careful examination of how each of your assets is titled.  At least some of your assets will need to be re-titled to work with your estate plan.  This requires some work on your end.  Of course, the work that you do now is work that the executor will not have to do later. But don’t look past the work required to set up the living trust.

That being said, most of these downsides are offset by benefits. In many cases, it’s pay now or pay later.  You can either go through the expense and hassle of arranging your affairs while you are still alive so that you avoid probate, making things easy on your loved ones, or you can let them sort it all out through the court system after your death.  Either choice can be reasonable, depending on your situation.

The Probate Avoidance Principle

There are several techniques that can be used to avoid probate, but all of them rely on one simple principle:

Probate can only be avoided by arranging your assets so that there is nothing in your name that does not automatically pass to someone else at your death.

All the probate avoidance tools that we will discuss depend on this single principle.  For example:

1. Joint tenancies avoid probate by automatically passing the asset to the surviving joint tenant at your death.
2. Life estates avoid probate by automatically passing the asset to the surviving remainderman at your death.
3. Beneficiary designations avoid probate by automatically passing the asset to the designated transfer-on-death or payable-on-death beneficiary at your death.
4. Living trusts avoid probate because you do not legally own the assets that are in the trust at your death.

Assets that are titled in one of these ways (joint tenancy, life estate, beneficiary designation, or living trust) are called non-probate assets.  They pass automatically at death, without the need for court involvement.  If all of your assets are non-probate assets, your entire estate will pass automatically at your death, leaving no assets to probate.

So why doesn’t everyone just title their assets this way?  Because these techniques (other than a living trust) usually come with their own set of problems.  These problems may include bad tax consequences, loss of control, or putting the asset outside of reach if it is needed to pay for your care during incapacity.  The living trust is a best-of-both-worlds solution.  It avoids probate without causing the problems that some of these other techniques can cause. 

The pages below will analyze each probate avoidance technique and tell you why you may or may not want to use it.  If you are ready to cut to the chase, request a copy of our free Guide to Avoiding Probate.  This guide contains all of the probate avoidance information that you will find here, but also includes specific, step-by-step instructions on how to avoid probate using these tools.  Request our guide to avoiding probate today.

Related Information

• 01 – Introduction to Avoiding Probate
• 02 - Avoiding Probate with Joint Tenancies
• 03 – Avoiding Probate with Beneficiary Designations
• 04 – Avoiding Probate with Life Estates
• 05 – Avoiding Probate with Living Trusts