Don’t Trust Your Attorney Unless They Tell You This About Probate
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Estate planning is filled with decisions that shape how your assets will be managed and passed on. One of the most common debates is whether or not to avoid probate. Many attorneys have strong opinions on this topic—but here’s why you shouldn’t take their advice at face value.
What Is Probate?
Probate is the court-supervised process that transfers ownership of assets from a deceased person to their heirs or beneficiaries. The process typically involves:
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Filing the will with the local probate court
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A judge appointing the executor (with legal authority via “letters testamentary”)
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Allowing time for creditors to make claims against the estate
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Distributing assets after debts and taxes are settled
On average, probate lasts one to two years. Some states streamline the process, while others impose stricter rules, higher costs, or more administrative burdens.
How to Avoid Probate
There are two main ways to bypass probate:
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Revocable Living Trust – Assets are transferred into the name of a trust during your lifetime. Since the trust owns the assets—not you—those assets don’t go through probate. Revocable trusts are flexible and can be amended or revoked at any time.
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Beneficiary Designations – Certain assets (bank accounts, brokerage accounts, life insurance, etc.) can pass directly to beneficiaries through payable-on-death (POD) or transfer-on-death (TOD) designations.
Why Not Trust Your Attorney’s Advice Blindly?
Different attorneys give different answers. Some downplay probate as “no big deal,” while others insist it should be avoided at all costs. The reality is that the choice depends on your unique situation.
Here are some issues to watch for:
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Attorney Bias – Some attorneys earn more from probate administration than from setting up trusts. This may influence their recommendations.
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Unfunded Trusts – Many living trusts are created but never funded (assets aren’t properly retitled into the trust). In those cases, the estate still ends up in probate—defeating the purpose.
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Lack of Trust Experience – Not every attorney is well-versed in trust planning. Some avoid recommending trusts simply because they’re not comfortable drafting or managing them.
The Cost-Benefit Analysis
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Revocable Living Trust – Costs more upfront, requires effort to retitle assets, but greatly simplifies matters for heirs and avoids probate delays.
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Will-Based Planning – Less expensive initially, but probate costs and delays come later.
Even if a trust isn’t perfectly funded (say, 99% of assets are titled correctly, but a few are not), the probate process will be far less expensive and complicated compared to running an entire estate through probate.
Key Takeaway
Estate planning isn’t a one-size-fits-all science—it’s an art. Attorneys have different approaches, but the ultimate decision should rest with you, the client. The right attorney will explain all options, help you weigh the pros and cons, and respect your choice—whether that means avoiding probate with a trust or using a simpler will-based plan.
Frequently Asked Questions (FAQs)
Q: What is the main downside of a revocable living trust?
The biggest challenge is properly funding it—retitling assets, creating new accounts, and updating deeds. Without this step, the trust doesn’t work as intended.
Q: If I have a will, do I still go through probate?
Yes. A will ensures assets are distributed according to your wishes, but it still goes through probate.
Q: Is probate always bad?
Not necessarily. In some states, probate is relatively simple and inexpensive. In others, it can be costly and time-consuming.
Q: Why would an attorney recommend probate over a trust?
Sometimes because of cost considerations (trusts are more expensive to set up). Other times, because the attorney makes more money handling probate than drafting trusts.
Q: Should I choose a trust or a will?
It depends on your goals. If privacy, efficiency, and control are important, a revocable living trust is often best. If simplicity and lower upfront costs matter more, a will may be enough.
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