How To Avoid Going Through Probate

Probate is the legal process that takes place after someone passes away to validate their will (if there is one), pay debts, and distribute assets. Going through probate can be time-consuming, costly, and sometimes complicated for the loved ones left behind. While it may be impossible to completely avoid probate in every situation, there are several strategies you can use to minimize or avoid probate for your estate.

Here’s how to avoid probate:

✅ 1. Establish a Living Trust

A revocable living trust is one of the most effective ways to avoid probate. By transferring ownership of your assets to the trust while you’re still alive, those assets are no longer part of your probate estate.
How it works: You create the trust, name yourself as the trustee (the person in charge), and designate beneficiaries to inherit the assets. Upon your death, the assets in the trust automatically pass to the beneficiaries without the need for probate.
Tip: If you’re married, consider creating a joint trust with your spouse.

✅ 2. Joint Ownership of Property

Joint ownership allows assets to automatically pass to the surviving owner upon death, bypassing probate.
How it works: With property such as real estate or bank accounts, you can hold it jointly with another person (e.g., a spouse or child). The right of survivorship ensures that the surviving owner automatically inherits the property when the other person dies.
Types of joint ownership:
- Joint tenancy with right of survivorship (JTWROS): Common for married couples.
- Tenancy by the entirety: Available in some states for married couples.
- Community property with right of survivorship: For married couples in community property states.

✅ 3. Beneficiary Designations

Some assets allow you to designate beneficiaries directly, meaning they will bypass probate and go directly to the named person(s) upon your death.
Assets that typically allow beneficiary designations:
- Life insurance policies
- Retirement accounts (e.g., 401(k), IRA)
- Bank accounts with POD (Payable on Death) or TOD (Transfer on Death) designations
- Vehicles, in some states, may also have TOD options
Tip: Regularly update your beneficiary designations to ensure they reflect your current wishes.

✅ 4. Transfer Real Estate to a Trust or Joint Ownership

If you own real estate, one of the most straightforward ways to avoid probate is by transferring ownership into a living trust or holding it jointly with another person.
In states with transfer-on-death deeds (TODD), you can designate a beneficiary for your property. Upon your death, the property passes directly to the beneficiary, avoiding probate.

✅ 5. Gifting Assets During Your Lifetime

Gifting assets to your heirs while you’re still alive can reduce the size of your estate and avoid the need for probate on those assets. However, be mindful of the gift tax rules.
Annual gift tax exclusion: You can gift up to a certain amount each year (currently $17,000 per recipient as of 2025) without triggering gift tax. Larger gifts may reduce your estate tax exemption but still avoid probate.
Tip: Gifting also helps your loved ones enjoy their inheritance while you’re alive.

✅ 6. Use a Small Estate Procedure

In some states, if the total value of your estate is below a certain threshold (typically a few hundred thousand dollars or less), your estate may qualify for a simplified probate process or small estate procedure.
How it works: The process is usually faster and cheaper than regular probate, with fewer court requirements. You can check with your state’s laws to see if your estate qualifies for this option.

✅ 7. Create Transfer on Death (TOD) or Payable on Death (POD) Accounts

Similar to beneficiary designations, TOD and POD accounts allow you to designate someone to inherit the asset upon your death.
Examples of TOD/POD accounts:
- Bank accounts (POD)
- Brokerage accounts (TOD)
- Real estate (in some states, TOD deeds are available)
These accounts pass directly to the named beneficiary without the need for probate.

✅ 8. Consider Family Limited Partnerships (FLPs) or Limited Liability Companies (LLCs)

If you have a business or significant assets, setting up a Family Limited Partnership (FLP) or Limited Liability Company (LLC) can help transfer ownership without probate.
How it works: You can transfer ownership of assets to these entities and then gradually transfer the shares or interests to your heirs during your lifetime.
This method can be complicated and may require professional legal and tax advice, but it can be an effective strategy for large estates.

✅ 9. Update Your Will Regularly

While a will itself does not avoid probate, it’s still an important tool for specifying how you want your assets distributed. Having an up-to-date, legally valid will ensures that your wishes are honored and that your estate is administered smoothly.
Tip: A well-drafted will can minimize complications during probate and reduce potential delays, though it won’t eliminate probate entirely.

✅ 10. Avoid Probate Through Strategic Estate Planning

Estate planning is a comprehensive approach that may involve a combination of the strategies mentioned above, such as creating a living trust, making beneficiary designations, and transferring assets during your lifetime.
A comprehensive plan can help reduce taxes, avoid probate, and ensure your assets are distributed according to your wishes.

Summary: How to Avoid Probate

✅ DO This	🚫 AVOID This
Establish a living trust	Rely solely on a will without additional planning
Use joint ownership or transfer-on-death accounts	Ignore beneficiary designations for accounts
Minimize your estate through gifting	Keep all assets in your name without designations
Transfer real estate into a trust or joint ownership	Leave assets in a way that requires full probate
Take advantage of small estate procedures	Overlook the possibility of simplifying probate

Final Tip:

While you can avoid probate on many assets, some assets (like those in your name without a beneficiary designation) will still go through probate. For complex estates, it’s highly recommended to consult with an estate planning attorney to develop a plan tailored to your needs.