What Is Probate, and What’s the Problem with It?
When it comes to planning for the future, most people focus on writing a will. But what many don’t realize is that even with a will in place, your estate may still go through a legal process called probate—and that can cause a host of problems for the people you care about most.
Let’s break down what probate is, why it can be a problem, and how you can plan ahead to avoid unnecessary complications.
What Is Probate?
Probate is the court-supervised process of settling a deceased person’s estate. This includes:
-
Validating the will (if one exists)
-
Appointing an executor or personal representative
-
Identifying and inventorying assets
-
Paying debts and taxes
-
Distributing remaining assets to heirs or beneficiaries
If someone dies without a will, the court follows state laws to determine who gets what.
Why Is It a Problem?
While the process is intended to protect the rights of heirs and creditors, it often causes more stress than relief. Here’s why:
1. It Can Take a Long Time
These proceedings can last anywhere from a few months to over a year, depending on the complexity of the estate and whether any disputes arise. During that time, your loved ones may not have access to funds or property they need.
2. It Can Be Expensive
Court costs, attorney fees, executor compensation, and other expenses can eat into your estate—often 3–7% of its value. That’s money that won’t go to your loved ones.
3. It’s Public
All activity related to the process becomes part of the public record. That means anyone can access information about your assets, debts, and who inherited what. This lack of privacy can lead to family tension—or worse, scams and identity theft.
4. It Can Create Conflict
The process opens the door to legal challenges from disgruntled relatives or creditors. Even if your will is clear, someone may still contest it, potentially dragging your family into stressful, expensive litigation.
Can It Be Avoided?
Yes—with proper planning, you can significantly reduce or even eliminate the need for probate. Here’s how:
Create a Revocable Living Trust
By placing your assets in a trust, they can be transferred to your beneficiaries privately and efficiently.
Designate Beneficiaries
For assets like life insurance, retirement accounts, and bank accounts, make sure to name beneficiaries. These will typically pass directly to your heirs.
Joint Ownership with Right of Survivorship
Real estate or accounts held jointly usually transfer automatically to the surviving owner.
Use Transfer-on-Death (TOD) or Payable-on-Death (POD) Designations
Many states allow these designations for financial accounts, vehicles, and even property—another simple way to keep things moving outside the courts.
The Bottom Line
Probate isn’t always a nightmare—but it’s rarely something families welcome during a time of grief. With a bit of proactive planning, you can save your loved ones time, money, and emotional strain.
If you’ve created a will but haven’t taken the next steps, consider building a complete estate plan. Planning ahead isn’t just for the wealthy—it’s for anyone who wants to make life easier for the people they care about.
