Probate is a legal hassle most people try to avoid—and for good reason. If you’re here to understand what it is and how to steer clear of it, this short guide will provide some clarity. It covers the basics, including the steps people take to keep their estates out of court.
Let’s get started.
Note: This article summarizes a conversation between Amanda Stevens and Whitney Short. For the full discussion, check out the podcast!
What Is Probate, Really?
Probate is a legal process that takes place within the probate court system after a person dies. During the process, the court will do a number of things: One, review the person’s will to confirm its validity; two, identify the person’s assets and debts; three, pay any outstanding obligations; and four, distribute what remains.
If there’s no will, the assets will be distributed according to state law.
A common misconception is that probate is unavoidable or necessary in every case. In reality, it can be avoided.
Why Avoid Probate?
Probate can be slow, expensive, and emotionally draining. Some cases are straightforward, but others involve delays, unexpected costs, or family disputes over who gets what. Moreover, while a case is in probate, heirs can’t access their assets. If the deceased owned a home, for example, it can’t be sold or rented without court approval.
Needless to say, after losing a loved one, people need time to grieve and make personal arrangements, not spend months sorting out assets with lawyers and judges.
How Do You Avoid Probate?
There’s no one-size-fits-all answer, but there are four common approaches:
- Own Nothing
If you don’t own anything, there’s nothing to probate. However, most people do have assets (homes, cars, accounts, even furniture), and this route is rarely practical.
- Joint Ownership
Holding property as joint tenants with rights of survivorship can work for certain assets. The process is generally very simple: If one owner passes away, the other automatically gets the asset.
However, this only avoids probate for the first death. If both pass away at the same time or the survivor never updates the plan, the asset goes through probate.
- Beneficiary Designations
In Nevada, you can name beneficiaries on things like bank accounts, retirement accounts, and life insurance policies. This is an effective and often overlooked approach.
However, beneficiary designations do have limits. For example, you can’t name a beneficiary on a business interest in Nevada. This is a major limiting factor in the state!
- Revocable Trusts
This is arguably the most comprehensive and flexible option. A revocable living trust allows you to manage your assets during your lifetime and pass them on privately and efficiently after death.
Done properly, this kind of trust avoids probate entirely, but it only works if properly funded.
The Misconceptions That Trip People Up
“I have a will, so I’ll avoid probate.”
False. A will is used during probate. It tells the court where you want your assets to go, but the court still oversees the process.
“I don’t own much, so I don’t need a trust.”
Also false. Trusts aren’t just for the wealthy. They’re for anyone who wants to make life easier for their loved ones.
“I have everything in place.”
Maybe. We’ve seen many cases where someone had a trust but never put assets into it, or their documents conflicted. Issues like this lead straight to court.
Real-Life Probate Horror Stories
We’ve seen estranged children inherit million-dollar businesses simply because there was no will. We’ve seen partners of decades kicked out of their shared home because they weren’t married. We’ve seen families fight over ice cube trays and magnet collections.
Why? Because there was no clear estate plan. We can help you avoid these kinds of issues.
Final Thought: Plan While You Can
No one wants to think about death, but ignoring it won’t stop it from happening. The truth is, you either pay an attorney to help you plan your estate properly, or your loved ones will pay the price later in court fees and stress.
Proper planning doesn’t just protect your assets. It protects the people you care about from stress, expense, and confusion during one of the hardest times in their lives. Don’t wait until it’s too late.
