Probate. You’ve heard this term tossed around by attorneys and finance professionals. Everyone says it’s annoying, time-consuming, and that you need to avoid it. But what is it?

Probate is the court-supervised legal process of validating the will (if one exists) of someone who passed away, paying their debts and taxes, and distributing their remaining assets to heirs or beneficiaries according to the will or state law. Probate court is another type of court like civil court and criminal court. Each state has its own probate rules. If a person dies either with or without a will, someone close to that person (usually a spouse, child, relative or a close friend) will need to file a petition to begin the probate process.

Why is the Probate Process So Bad?

Probate can take a year or longer (even two years for complex estates) until the rightful heirs receive their inheritance. This can be problematic for families dealing with immediate needs like bills, mortgages, or heavy grief. 

Probate is expensive. California has statutory attorney and executor fees based on the gross value of the probate estate. For example, on a $1 million estate, fees can exceed $20,000-40,000 or more if there are complications. Add other miscellaneous court-related expenses, and the total can wipe out 3-7% of the estate’s value. This reduces what the beneficiaries will receive in the end. 

Probate is public. Probate filings become public record. Anyone can look up details about your loved ones’ estate, finances, family, or property. This can expose sensitive information to strangers, scammers, creditors, etc. This is especially problematic for young and inexperienced beneficiaries or elderly people who are at higher risk of being defrauded. 

Probate can lead to family conflicts. The probate process invites challenges to the will, claims from creditors or heirs, or arguments over potential inheritances. Minor disagreements can escalate into costly litigation. This can wipe out even more of the estate and strain relationships at the same time. 

Your Savior for Avoiding Probate is the Revocable Living Trust

Enter the revocable living trust: the hero that rescues your heirs from probate’s paperwork, predatory fees, and possibilities of family conflict – without ever forcing you to relinquish control while you’re still making all the decisions. So long as you have a properly drafted revocable living trust and it is funded with your assets, you will completely avoid probate. 

Create the Trust. First, you need to form a trust with the help of a trusted law firm. You will most likely be the trustee of your own trust, which means you will remain legally responsible for holding and managing the trust’s assets. With a trust, you will also have the opportunity to appoint a successor trustee to act in your place in case you lose mental capacity. 

Fund the Trust. Next – this is arguably the most important step – you must properly title your assets in the name of your trust. This is called “funding the trust.” Imagine your trust as a treasure chest. You need to place items in your treasure chest, otherwise there won’t be anything to pass down to your beneficiaries according to your trust instructions. This means that your house, financial accounts, and other assets need to be retitled in the name of your trust. If any assets are not retitled properly, you’re risking those assets going through probate in the future.  

Coordinate Your Non-Trust Assets. Certain assets, such as retirement accounts and life insurance, typically pass by beneficiary designation (not through your trust). You should review these and make sure that your beneficiary designations are up to date, or else this could also trigger probate. 

Review and Update Your Estate Planning Documents Regularly. Life changes  – like marriage, divorce, births, deaths, or significant asset changes – can affect your estate plan significantly. You should schedule regular reviews of your estate planning documents (every two to three years) to ensure your trust continues to function as you intended. 

Your Family Deserves Better Than Probate

Probate isn’t inevitable, and avoiding probate is a choice.

If you take the simple steps to establish and fund a revocable living trust, you can spare your family months (or even years) or delays, thousands in avoidable fees, public exposure of private matters, and the heartbreak of preventable conflict. 

Don’t wait for life to force the issue. Reach out to an experienced estate planning professional to get your revocable living trust in place. The peace of mind it brings to you and your loved ones is priceless. 

Susie Grigoryan is a dedicated estate planning associate attorney at KJMLAW Partners, where she helps individuals and families secure their futures through customized wills, trusts, and estate planning. Susie is passionate about simplifying complex legal concepts, ensuring her clients feel supported and empowered when making critical decisions. Her client-centered approach focuses on protecting assets and creating lasting peace of mind for loved ones. She received her JD from the Dale E. Fowler School of Law at Chapman University. If you have questions about this topic or would like guidance on estate planning in California, contact Susie Grigoryan to schedule a consultation.