couple stressed by probate process

How to Avoid the Big Bad Wolf of Probate Court

How do you ensure your family and loved ones are safe from the Big Bad Wolf of probate court?

Whether you have a comprehensive family trust or are just getting started with a basic estate plan, understanding and avoiding probate is paramount for each person considering the future of their loved ones.

What Is Probate And How Does It Work?

Probate is the process of administering, or settling, a person’s estate after their death. Laws and procedures vary from state to state, but the process largely depends on whether the deceased had a will.

If the deceased had a will, the probate court will determine whether it is valid. Then the court will follow the instructions in the will to appoint an executor and direct the distribution of assets. Assets owned jointly, held in a trust, coupled with transfer-on-death or payable-on-death accounts are not included in this distribution. After the court pays off the deceased’s debts, the remainder of the assets are distributed to the beneficiaries named in the will.

If the deceased did not have a will, the state will name an administrator for the estate and determine the beneficiaries. In Ohio, the beneficiary is typically the surviving spouse, followed by children, parents, siblings, nieces and nephews and grandparents.

Why Is Probate A Big Bad Wolf?

  1. Probate Is Inefficient – Probate is extremely time-consuming and inefficient. The minimum time to administer a single asset through probate court is 6 months. This is because creditors have 6 months to attach their interest on an asset through probate. Moreover, the average time to administer an estate in the state of Ohio is about one year.
  2. Probate Is Costly – Probate is expensive. According to the AARP, the many fees of probate (court, attorney, filing, etc.) add up to 5-10% of the value of your estate. For example, on the low (5%) end, if you have an estate with a house, retirement, and other assets totaling $500,000, your loved ones could lose at least $25,000 in probate costs.
  3. Probate Is Public – Since probate proceedings are part of a government court system, the entire process is public. This means that anyone can go online and search the docket for every probate matter filed today. In less time than it takes you to read this article, someone could determine the value of assets in your estate, beneficiaries, executors, property listed, debt, and more. Once they have this information, your loved ones are vulnerable to scams and hassles from creditors and scam artists.
  4. Probate Does Not Offer Asset Protection – The probate court serves two main functions. First, probate pays creditors all that is owed by the deceased. After debts are paid, the probate court administers its second function which is to pay beneficiaries an outright distribution of whatever is left. The court is impersonal, and cannot take into consideration important changes in relationships or financial challenges. Multiple factors including divorce, student loans, litigation, creditor issues, and/or spending issues can impact the distribution of your hard-earned money.
  5. Probate Can Cause Family Feuds – Disagreements about asset and property distribution are common. For example, a beneficiary may feel they have been short-changed and challenge the probate process. They might do this by challenging the validity of the will or the competency of the executor.

So, what can you do to avoid the above? Is a basic will a good form of estate planning? Does a will avoid probate or is there a better option?

The reality is that a basic will is your one-way ticket to probate court. With the inefficiency, cost, publicity, and weaknesses of probate, the following options are vital to protecting your loved ones.

Joint Ownership

Joint ownership is the most commonly employed method to avoid probate. Assets owned by more than one person result in the survivor taking ownership. Joint ownership examples include a joint bank account or joint home. This is significantly beneficial when avoiding probate for a residence because the transfer of assets is immediate and does not require a court-approved transfer.

The downside of joint ownership is that it does not offer asset protection. A trust must be established to deter creditors from attaching their interest in a residence or asset of a jointly held account after both parties have passed.

Beneficiary Designations

If you’ve ever engaged with a financial planner, you’ve probably filled out a beneficiary designation. These forms are very common with retirement accounts (such as a 401(k), 403(b), IRA, etc.), annuities, and other assets. Beneficiary designations are a great way to avoid probate and keep your estate private. The owner of these types of assets is required to denote primary and contingent beneficiaries in the event of death. Thus, these assets transfer directly and immediately to listed beneficiaries without the need for court.

The downside to beneficiary designations is that your assets are not protected against divorce, creditors, or litigation. For example, if your children inherit an IRA, but then get divorced, the ex-spouse may receive half of the retirement assets depending on how those assets are managed during the marriage. A trust would keep the inheritance in a ‘bloodline’ relationship to your kids and grandkids.

Transfer-on-Death (TOD)

A transfer-on-death works similar to a beneficiary designation. Assets which hold title, such as real estate, securities (stocks and bonds), vehicles and boats are registered to transfer immediately on death. This is done on the deed or title of each asset.

Payable-On-Death (POD)

Similar to beneficiary designations and transfer-on-death, PODs transfer assets without court intervention. You can name a beneficiary on assets with an account number, such as bank accounts, life insurance policies and CDs.

Family Trusts

The single best way to avoid probate while also providing asset protection is by creating a family trust.

A trust is a private legal document that allows you or an appointed trustee to manage the assets that are placed inside the trust for the benefit of trust beneficiaries. When a trust is properly drafted and funded, assets go from the owner’s taxable estate to the trust. Thus, when the owner dies, the assets in the trust are not in the owner’s estate and not subject to probate.

In addition to avoiding probate, if you are worried about a child getting divorced, concerned for a child with spending issues, or simply want to provide asset protection for your family, a family trust will accomplish all of the above.

Working With A Probate Attorney

Don’t Let the Big Bad Wolf Blow Your Plan Down!

This brief article makes obvious the importance of avoiding probate. But what other plans should you be concerned about? Is your estate plan made out of straw (a basic will), wood (beneficiary designations), or brick (family trust)? For more information on how to avoid probate, contact Dan A. Baron or Baron Law LLC by phone at 216-573-3723, or by emailing

If you are an executor currently navigating probate, consider consulting an attorney before executing your duties. An experienced probate attorney can help you prepare documents, collect assets, review debts, transfer titles, and ultimately save you time and money.


This blog is for educational purposes only; it is not intended to provide legal advice. If you’re planning for your estate and want to speak with an attorney, call 216-573-3723.