How to Avoid Probate: 6 Common Strategies

Six ways to pass assets directly to your heirs, and when probate isn't worth avoiding.

By No Brainer Forms Team Updated 3 min read

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

StrategyWorks forCost and effortMain drawback
Beneficiary designationRetirement accounts, life insuranceFree; a formMust keep updated
Payable-on-deathBank accountsFree; a formBeneficiary options vary by bank
Transfer-on-death registrationBrokerage accounts, securitiesFree; a formNot available for every asset
Transfer-on-death deedReal estate, in states that allow itLow; must be recordedNot available in every state
Joint ownership with survivorshipHomes, accountsLowGives the co-owner rights now; tax and creditor risks
Revocable living trustAlmost any assetHigher; assets must be retitledUpfront cost and upkeep
Probate-avoidance tools compared

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

Does having a will avoid probate?

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.

What assets don’t go through probate?

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.

Is probate always expensive?

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.

Can my executor avoid probate after I die?

Usually only through small-estate procedures. Most probate-avoidance steps must be taken during your lifetime.

Does avoiding probate also avoid estate taxes?

No. Probate and estate tax are separate. Assets that skip probate can still count toward federal or state estate tax.

Keep reading

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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.