How to (Realistically) Avoid Probate: 10 Things You Can Do Now
Many people believe they have their affairs in order. They may have a will, or they may assume accounts will be transferred to the right people without any trouble. It seems straightforward. Then the family discovers that a few details were missed. In my work as an end-of-life doula, I see how quickly things can get complicated. Families arrive with a binder of papers. As we go through it, small gaps show up. Maybe a bank account never had a beneficiary added. Perhaps the plan was written decades ago, and the content is no longer appropriate. These problems occur more often than people expect, and many could have been avoided.
Planning for the future of your property after you pass away involves more than just signing a few forms. There are straightforward steps that can make a significant difference, yet many people are unaware of them. Even families who make an effort to prepare can encounter unnecessary challenges because they may not have been informed about what to double-check or when to review their plans. While I can’t guarantee that any plan will completely prevent your family from going to court, these ten steps can reduce the likelihood of court involvement and ease the burden on those who will manage your affairs later. Here are the most important things to consider.*
1. Understand what a will does and does not do
A will can be helpful, but many people are surprised to learn that it often requires a court process. A will tells the court what the person wanted to do with their belongings, but the judge still needs to confirm that it is valid and that the right person is handling things.
2. Consider setting up a trust
A trust can help your property move to the right people without going through the court system. When a will is created, and someone dies, the court steps in because the property is still in the person’s name. Someone must decide what to do with the property. A trust changes that. When you move your property into the trust, the trust becomes the legal owner. You still control everything while you are alive, but the trust is the container that holds it.
After you die, the person you chose to manage the trust can follow your instructions without a judge’s approval. The court is not involved because the property is no longer in your name. It already has a place to go and someone authorized to handle it. But for a trust to work, it must reflect your real situation and hold the assets you want protected. A trust that is never used or never funded will not keep your family out of court.
3. Make sure the trust is funded
This is a step many families miss. Creating a trust is one part of the process. Moving assets into the trust is the other part. If accounts or property are not transferred into it, they may still require court oversight. A person may set up a trust but forget to place a bank account or investment account into it, which creates problems later.
4. Check how your home and other property are titled
The exact wording on a deed matters. Many couples think that if both names appear on the title, the property will automatically go to the surviving spouse. That is not guaranteed. The deed has to say how the owners hold the property together. If it lists both names with no wording about the type of ownership, the property may not transfer the way the couple expected.
For example, some deeds say that the owners hold the property as joint tenants. Some say they hold it as community property with a right of survivorship. Those short phrases tell the county what should happen when one owner dies. If the deed does not include anything like that, the surviving spouse might need a court order to claim full ownership, even if both people always assumed it would pass over automatically. It takes only a few minutes to look at a deed and make sure the wording matches what you want. This quick check can prevent confusion later.
5. Add and update beneficiaries
Bank accounts, retirement accounts, and insurance policies let you name beneficiaries. Unfortunately, many people leave that section blank or forget to update it after major life changes. Sometimes the person listed has passed away or is no longer the right choice. When that happens, the account may end up in the court process instead of going straight to the person you intended. A quick look at your accounts now can spare your family extra steps later.
6. Review and update your plan regularly
Life changes, and families change too. The rules around estate planning also shift over time. A plan that made sense twenty years ago may not fit your life today. Many people set up an initial estate plan when their kids are young and then never look at it again. By the time they return to it, the family may look different, the money situation may have changed, or their wishes are not the same. Small adjustments, like adding a new grandchild or removing an old account, can clear up a lot of confusion. It helps to review your estate plan every 3-5 years and see if it still makes sense.
7. Avoid do-it-yourself legal documents
Online templates and AI tools can seem straightforward, but they often miss key details. These tools cannot evaluate your specific situation or warn you when something in the document might create a problem later. A form that looks correct on the surface may contain wording that triggers court involvement or omits something important. Most families will not notice these issues until someone dies and the will or trust does not work the way they thought it would. When it comes to planning for your property, accuracy and context matter, and a generic template cannot offer either one.
8. Choose the right people for important roles
The person who manages your plan will have a lot of responsibility. Choose someone who can stay organized and communicate well. Many families choose people out of habit rather than the person best suited for the job. Conversations about this can be uncomfortable, but they help prevent conflict later.
9. Talk with your loved ones about your plan
People do not need every detail, but they should know where things are kept and what you want. These conversations give families clarity when they need it most. Many problems can be avoided when the people involved understand their roles and know what to expect. Even a short conversation can make things easier later.
10. Do not wait
A plan only works when the person creating it can still make decisions. Families sometimes reach out after a loved one has become ill or has dementia, and the person can no longer sign new documents or make legal choices. When that happens, the family may need to go to court to obtain permission to manage their affairs. Planning early avoids that situation and gives you more control over what happens.
Planning ahead is not meant to be overwhelming. It is a way to remove confusion for the people who will care for your affairs. These steps cannot guarantee that your family will avoid court, but they do reduce the chances of delays and unnecessary stress. A little attention now can make things more straightforward for the people you love.
* I recommend working with an estate attorney. The above steps are helpful, but an attorney can review your specific situation and make sure your documents are prepared and updated correctly.
Links and Resources
Guest: Jeannette Marsala, Estate Planning Attorney - https://sanjoselivingtrust.com
Host: Traci Arieli - https://www.comfortingclosure.com