July 2, 2025
By: Dana M. Fragakis, Esq.
Unless you’ve created an estate plan that works to keep your family out of court when you die (or become incapacitated), many of your assets must go through probate before those assets can be distributed to your heirs. Like most court proceedings, probate can be time-consuming, costly, and open to the public, and because of this, avoiding probate—and keeping your family out of court—is often a central goal of estate planning.
To spare your loved ones the time, cost, and stress inherent to probate, in part one of this series, we explained how the probate process works and what it would entail for your loved ones. In part two, we’ll discuss the significant drawbacks of probate for your family and outline how you can help them avoid probate with wise planning.
What’s at Stake For Your Family
Probate court proceedings can take months, sometimes even years, to complete. In the immediate aftermath of your death, that’s the last thing you likely want your loved ones to have to endure. And the cost of their time and emotional strain is just the start of the potentially devastating consequences your family could face if you don’t plan.
Without easy and immediate access to your assets, your family could face severe financial hardship at a time when they need the most support. Not only that, but to help them navigate the legal proceedings, your loved ones will almost certainly need to hire a lawyer, which can result in hefty attorney’s fees and the real risk of them hiring an uncommunicative lawyer, which only creates more stress for them. All of that is on top of the court costs, executor’s compensation, and various other administrative expenses related to probate. When all those costs have been paid, your estate could be totally wiped out, or at the very least, seriously depleted.
Another drawback of probate is that it’s a public process. Whether you have a will or not, all of the proceedings that take place during probate become part of the public record, this means that anyone interested can learn about the contents of your estate, who your beneficiaries are, and what they will inherit, which can set them up as potential targets for scammers and fraudsters.
Probate also has the potential to create conflict among your loved ones. This is particularly true if you have disinherited someone or plan to leave significantly more money to one relative than the others, in which case, a family member may contest your will. And even if those contests don’t succeed, such court fights will only increase the time, expense, and strife your family has to endure.
How To Avoid Probate
Before we discuss the more advanced ways you can use estate planning to allow your loved ones to avoid probate, it’s important to point out that not all of your assets will have to go through the probate process—and that’s true even if you don’t have any estate plan at all.
ASSETS THAT DO NOT REQUIRE PROBATE
Certain assets, such as those with beneficiary designations like 401(k)s, IRAs, and the proceeds from life insurance policies, will pass directly to the individuals or organizations you designated as your beneficiary, without additional planning.
The following are some of the most common assets that use beneficiary designations and therefore, bypass probate:
- Retirement accounts, IRAs, 401(k)s, and pensions
- Life insurance or annuity proceeds
- Payable-on-death (POD) bank accounts
- Transfer-on-death (TOD) property, such as bonds, stocks, vehicles, and real estate
Outside of assets with beneficiary designations, other assets that do not go through probate include assets with a right of survivorship, such as property held in joint tenancy, tenancy by the entirety, and community property with the right of survivorship. These assets automatically pass to the surviving co-owner(s) when you die, without the need for probate.
However, it’s critical to note that if you name your “estate” as the beneficiary of any of these assets, those assets will go through probate before being distributed. The same goes for those who overlook a beneficiary designation or die simultaneously as a joint property owner—each asset will also go through probate, even though they have beneficiary designations.
In addition, we generally recommend that you do not rely on beneficiary designations to handle the distribution of your assets. These designations give you little to no control over how your assets are distributed, and they can result in adverse outcomes you did not intend, especially if you have a blended family with children from a prior marriage or have no children.
Although several different types of assets automatically bypass probate, most of your assets will require slightly more advanced planning to ensure your loved ones can immediately access them, without needing any court proceedings if something happens to you. The primary estate planning tool for this purpose is a trust.
Avoiding Probate With a Revocable Living Trust
Trusts are a popular estate planning tool for avoiding probate. Although there are various types of trust, the most commonly used trust for probate avoidance is a revocable living trust, also called a “living trust.”
A trust is a legal agreement between the “grantor” (the person who puts assets into the trust) and the “trustee” (the person who agrees to manage those assets) to hold title to assets for the benefit of the “beneficiary.” With a revocable living trust, this agreement is typically made between you as the grantor and the trustee to benefit you as the beneficiary. You act as your own trustee during your lifetime, and then you name someone as a “successor trustee” to take over management of the trust when you die or in the event of your incapacity.
It might seem odd to make an agreement with yourself to hold title to assets for yourself to benefit yourself. Yet by doing so, you remove those assets from the court’s jurisdiction in the event of your incapacity or when you die. Instead, those assets are transferred to your successor trustee without requiring court intervention.
At that point, your successor trustee is responsible for managing the trust assets and eventually distributing them to your beneficiaries, according to the terms you spell out in the trust agreement. This is how a trust avoids probate, saving your family significant time, money, and headaches.
The Key Benefits of a Living Trust
Unlike a will, if your trust is properly set up and maintained, your loved ones won’t have to go to court to inherit your assets. Instead, your successor trustee can immediately transfer the trust’s assets to your loved ones upon death or in the event of incapacity. And since you can include specific instructions in a trust’s terms for how and when the assets held by the trust are distributed to a beneficiary, a trust can offer greater control over how your assets are distributed compared to a will.
For example, you could stipulate that the assets can only be distributed upon certain life events, such as the completion of college or marriage, or when the beneficiary reaches a certain age. In this way, you can help prevent your beneficiaries from blowing through their inheritance and offer incentives for them to demonstrate responsible behavior. And as long as the assets are held in trust, they’re protected from the beneficiaries’ creditors, lawsuits, and divorce, something else wills don’t provide.
Finally, trusts remain private and are not part of the public record. So, with a properly funded trust, the entire process of transferring ownership of your assets can happen in the privacy of our office, not a courtroom, and on your family’s time.
Transferring Assets Into A Living Trust
For a trust to function correctly, it’s not enough to simply list the assets you want it to cover. When you create your trust, you must also transfer the legal title of any assets you want to be held by the trust from your name into the name of the trust. Retitling assets in this way is known as “funding” a trust.
Funding your trust properly is extremely important because if any assets are not properly funded to the trust, the trust won’t work, and your family will have to go to court in order to take ownership of that property, even if you have a trust. In light of this, it’s critical to work with us at Florida Wills and Trusts Law to ensure your trust works as intended.
While many lawyers will create a trust for you, few will ensure your assets are properly inventoried and funded into your trust, and then ensure that the inventory of your assets is kept up-to-date as your life and assets change over time. At Florida Wills and Trusts Law, we will ensure all of your assets are appropriately titled when you initially create your trust, and that any new assets you acquire are inventoried and adequately funded to your trust. This will keep your assets from being lost and prevent your family from being inadvertently forced into court because your plan was never fully completed.
Living Trusts, Taxes, Creditors, & Lawsuits
When you create a revocable living trust, you are free to change the trust’s terms or even altogether terminate the trust at any point during your lifetime. Because you retain control over the assets a living trust holds during your lifetime, those assets are still considered part of your estate for estate tax purposes. Similarly, assets held in a living trust are not protected from your creditors or lawsuits during your lifetime. This is an essential and often misunderstood point.
Again, a revocable living trust does not protect your assets from creditors or lawsuits and does not impact your income taxes. However, as mentioned earlier, as long as the assets are held by a living trust or a Lifetime Asset Protection Trust, those assets can be protected from your beneficiaries’ creditors, lawsuits, and even divorce settlements. Be sure to ask us about the different trust-based estate planning options we offer to find one that is best suited for your situation.
A living trust’s primary benefit is passing your assets to your loved ones without any need for court or government intervention. It ensures your assets pass in the way you want to the people you want.
Life & Legacy Planning: Do Right By Those You Love Most
Although a living trust can be an ideal way to pass your wealth and assets to your loved ones, each family’s circumstances differ. This is why, at Florida Wills and Trusts Law, we will not create any documents until we know what you need and the most affordable solution for you and your family, both now and in the future, based on your family dynamics, assets, and desires.
The best way for you to determine which estate planning strategies are best suited for your situation is to meet with us at Florida Wills and Trusts Law for a Life & Legacy Planning Session, which is the first step in our Life & Legacy Planning Process. During this process, we’ll take you through an analysis of your assets, what’s most important to you, and what will happen to your loved ones when you die or become incapacitated.
Sitting down with us will empower you to feel 100% confident that you have the right combination of estate planning solutions to fit with your unique asset profile, family dynamics, and budget. At Florida Wills and Trusts Law, we see estate planning as far more than simply planning for your death and passing on your “estate” and assets to your loved ones—it’s about planning for a life you love and a legacy worth leaving by the choices you make today—and this is why we call our services Life & Legacy Planning. Click here to schedule your complimentary 30-minute Legacy Planning Meeting with us!
This article is a service of Dana M. Fragakis, a Personal Family Lawyer® Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a comprehensive Life & Legacy Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session™.
The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® Firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.