The Benefits of Avoiding Probate

Probate court, a specialized court that helps distribute property and debts of a person who has died, might appear to have a straightforward mission: validate a person's will and make sure the deceased's creditors are paid and that remaining assets are distributed to the proper beneficiaries.

But it's often not that simple. While probate can help ensure money, property, and other assets end up in the right hands, it can also be time-consuming, slow, and uncomfortably public.

Fortunately, there are ways to avoid probate and lay the groundwork to make sure the "settling up" after you pass on is a civil and relatively efficient process for your loved ones, says Austin Jarvis, director of estate, trust, and high-net-worth tax at the Schwab Center for Financial Research.

Probate courts in the U.S. handle hundreds of thousands of cases every year, but that doesn't mean you should join the crowd. For one, your time is precious, and so is your family's.

"In a probate case, you show the court a will and then proceed to prove its veracity. In some states, this process is made easier with the use of a valid 'self-proving' affidavit," Austin says. (A self-proving affidavit is a signed and notarized statement confirming that you and your will's witnesses were the individuals who signed and witnessed the original will, and it keeps witnesses from having to testify about your will's validity later.) "That's just one of many steps. Typically, the probate process could last three months to a year. And if you've got a substantial estate—say, $5 million or more—probate court could take up to five years."

Costs to go through probate court vary by state, but typically are based on a percentage of your assets, which could range from 0.5% to 4% in high-probate-cost states. For example, a $1 million estate may cost $40,000 just to settle, not including fees charged by attorneys, accountants, executors, and appraisers.

Probate can also lead to legal headaches and family disputes. There can be challenges to the validity of the will, which is an entire process unto itself. And in probate, how the burden of proof is determined for these situations depends on the state. "That can get tricky, especially when it involves new spouses, stepchildren, and others," Austin says. "Probate judges are very matter-of-fact. They follow the letter of law to a 'T' to make sure they're calling the 'balls and strikes' of a will and are seldom, if ever, moved by sob stories."

Bottom line, says Austin: "There are a lot of complexities with probate law." Notably, for the privacy-minded: probate proceedings and wills are a matter of public record. If there's information about your estate or finances that you'd rather not be made public, you should consider some alternatives.

Can you avoid probate? Having a solid estate plan that includes a trust is a good place to start.

While there are many types of trusts, the most common is a revocable living trust, which lets you to transfer assets into the trust while naming yourself the trustee. You have the same access and control over your assets as before you established the trust, and can buy, sell, trade, and move assets in and out of the trust. When you die or become incapacitated, the trust will become irrevocable—meaning after that point it can't be changed or revoked. 

A revocable trust is a very "flexible and powerful" tool that can allow your family faster access to assets and is generally harder to challenge than a will, Austin says. "With a revocable trust, it can be a relatively quick process—days to weeks, depending on how fast the trustee moves to transfer the assets to the beneficiaries," he says.

Additionally, trusts keep private matters private. There's a cost to setting up a trust—administrative fees, for example—but it's often worth it for families that seek a faster, more discreet method of settling an estate.

"Having foundational documents that take care of your assets is akin to gifting peace of mind to your loved ones,” says Austin. “It's truly a kindness to your heirs and beneficiaries if you can relieve them of the stress of dealing with your estate."