Congrats! If you’re wondering about probate that means you have a will, which sets you apart from nearly 2/3 of people in the U.S. Since you’ve completed that essential step in organizing your estate, you’re right to wonder about the probate process. After all, probate is the legal protocol by which recognition is given to your will and the executor or personal representative is appointed. Unfortunately, there is no single process followed by all probate proceedings; instead, laws vary from state to state and, for that reason, it is wise to consult an estate planning lawyer to ensure you understand the ways probate may affect your final wishes.

Though vendors of living trusts will lead you to believe probate is a maddening experience, the modern, streamlined version is no longer quite so painful in many states. Today’s probate is plenty efficient in administering and accounting for assets—a task that will need completing regardless of whether the estate is handled by an executor in probate or by transferring all assets to a living trust. More important than dodging probate is resolving the deeper issues that generally complicate estate administration. That said, there are times when probate should be sidestepped.

Misunderstandings between heirs are a frequent and costly driver of heated probate battles amongst family members. Lawsuits often leave lasting scars, and sometimes result in the estate being managed in ways that are different from those intended. If you recognize that a loved one is apt to provoke conflict, or does not fully hold your trust, you would be wise to consider an asset transfer to a living trust that protects your final wishes from being abused in court. To do this, you must title all of the assets you would like to protect in the name of the trust. If, for whatever reason, you prefer not to do this, other avenues exist that likewise prevent the courts from meddling in your asset management.

On the extreme end, you can avoid probate by getting rid of all your property. However radical, there are instances where gifting property though special types of trusts makes sense. A less heavy-handed option is to add a joint owner to your bank accounts, investment accounts, or to the deeds of any real estate you own. Important here is ensuring the account or deed is owned as “joint tenants with rights of survivorship” and not as “tenants in common.” If you own life insurance or hold assets in a retirement account, a third option exists for avoiding probate. Many states allow you to designate beneficiaries to bank accounts, thereby creating either “payable on death accounts” or “transfer on death accounts,” and some states even permit the creation of “transfer on death deeds.”

None of these options are straightforward, and some come with significant drawbacks, however. Adding a joint owner to an account, for instance, may be deemed a taxable gift. Worse, if a joint owner is sued or gets divorced, some jointly held assets may be compromised. To avoid such outcomes, it is essential to speak with an experienced estate planning attorney as to whether it makes sense to take such steps in order to avoid probate. In many instances, probate is the simplest option, despite all the scare rhetoric that surrounds the term.


The Deliberato Law Center provides compassion-driven estate planning and elder law services in Cleveland, OH. We know that estate planning is often surrounded by many uncertainties…and even more questions. Take the opportunity to request a free consultation with an estate planning attorney at our firm and get answers to your most burning questions, and most pressing concerns.