Key Takeaways
- Probate is the court process that validates a will, pays debts and distributes the property of someone who died.
- It can take months or longer, costs money, and makes your estate a public record.
- Assets with beneficiary designations, payable-on-death or transfer-on-death registrations, and joint ownership with survivorship skip probate.
- A revocable living trust avoids probate for everything you transfer into it.
- Many states have simplified procedures for small estates, so avoiding probate isn’t always worth the effort.
What is probate?
Probate is the legal process of settling someone’s estate after death. A court confirms the will (or applies state law if there isn’t one), formally appoints the executor, oversees paying debts and taxes, and authorizes distribution of what’s left.
Probate isn’t always a nightmare, but it has real drawbacks:
- Time: often several months, and sometimes more than a year
- Cost: court fees, attorney fees and executor compensation
- Publicity: probate files are generally public records
- Multiple states: real estate in another state can require a separate proceeding there
Six ways to avoid probate
1. Name beneficiaries on retirement accounts and life insurance
These pass directly to the named primary or contingent beneficiary. Make sure every account has both.
2. Add payable-on-death (POD) designations to bank accounts
Most banks let you name a POD beneficiary who receives the account at your death, with no probate and no access during your life.
3. Use transfer-on-death (TOD) registration for investments
Brokerage accounts and securities can usually be registered to transfer on death to named beneficiaries.
4. Use a transfer-on-death deed for real estate
Many states allow a TOD deed (also called a beneficiary deed), which passes your home to a named person at death while you keep full control during life.
5. Own property jointly with right of survivorship
When one owner dies, the survivor automatically owns the property. Be careful: adding someone as a joint owner gives them real ownership now, can expose the asset to their creditors and can have tax consequences.
6. Create a revocable living trust
Assets you transfer into the trust pass to your beneficiaries through your successor trustee, without court involvement. See will vs. trust.
Comparing the strategies
| Strategy | Works for | Cost and effort | Main drawback |
|---|---|---|---|
| Beneficiary designation | Retirement accounts, life insurance | Free; a form | Must keep updated |
| Payable-on-death | Bank accounts | Free; a form | Beneficiary options vary by bank |
| Transfer-on-death registration | Brokerage accounts, securities | Free; a form | Not available for every asset |
| Transfer-on-death deed | Real estate, in states that allow it | Low; must be recorded | Not available in every state |
| Joint ownership with survivorship | Homes, accounts | Low | Gives the co-owner rights now; tax and creditor risks |
| Revocable living trust | Almost any asset | Higher; assets must be retitled | Upfront cost and upkeep |
When probate may not be worth avoiding
Many states offer a small-estate affidavit or simplified probate for estates under a certain value. If your estate is modest and most assets already pass by beneficiary designation, a will may be all you need. And you’ll still want a will as a backup for anything you missed, and to name a guardian for children.
Frequently asked questions
No. A will is the instructions probate follows. Assets in your name alone with no beneficiary usually go through probate even if you have a will.
Life insurance and retirement accounts with named beneficiaries, payable-on-death and transfer-on-death accounts, jointly owned property with survivorship rights, and assets held in a living trust.
Not always. Costs depend on your state, the size and complexity of the estate and whether there are disputes. Many states have simplified procedures for small estates.
Usually only through small-estate procedures. Most probate-avoidance steps must be taken during your lifetime.
No. Probate and estate tax are separate. Assets that skip probate can still count toward federal or state estate tax.
Keep reading
- Estate Planning Checklist: The Documents Everyone NeedsA plain-English estate planning checklist: the will, living will, powers of attorney and other documents everyone needs, plus what to organize and when to update.
- What Is a Living Will? How It Works and What to IncludeA living will records your wishes about life-sustaining treatment if you can't speak for yourself. Learn what it covers, when it applies and how it differs from a will.
- Living Will vs. Advance Directive: What’s the Difference?An advance directive is the umbrella term; a living will is one type. Learn how living wills, health care powers of attorney and advance directives fit together.
- Will vs. Trust: Which Do You Need?Compare a will and a revocable living trust on probate, privacy, cost and control. Learn when a will is enough and when a trust makes sense.
- What Happens If You Die Without a Will?If you die without a will, state intestacy law decides who inherits, who manages your estate and who raises your kids. Here's what typically happens.
- Funeral Planning Checklist: How to Plan AheadA step-by-step funeral planning checklist: burial or cremation, the service, costs, paperwork and how to make sure your family can find your wishes in time.
- How to Choose an Executor for Your Will (and What They Do)Your executor carries out your will. Learn what an executor does, who makes a good choice, and the mistakes to avoid when naming one.
- Pet Trust: How to Provide for Your Pets After You’re GonePets can't inherit money, but a pet trust can fund their care. Learn how pet trusts work, how they compare with a will, and how to choose a caregiver.
Don’t leave your family guessing
Put your health care wishes in writing with a living will, HIPAA release and medical authorization. The No Brainer Box adds a last will, a revocable trust and health care and financial powers of attorney.
- Answer a few simple questions online
- Download your completed, ready-to-sign forms
- Sign them and keep copies in your account
This guide is general educational information written by the No Brainer Forms Team. It is not legal advice, and No Brainer Forms is not a law firm. Laws and signing requirements vary by state; for advice about your situation, talk to a licensed attorney in your state.