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What is Probate and Why Should I Avoid it?

What is Probate and Why Should I Avoid it

At Heritage Law Office, our experienced attorneys understand the complexities of estate planning and probate law. We know that it can be overwhelming to navigate this legal landscape, which is why we offer a range of services to help you plan for the future and protect your loved ones. In this article, we will provide an overview of probate and explain why it is often beneficial to avoid it.

Understanding Probate

Probate is the legal process by which a deceased person's assets are distributed to their heirs and beneficiaries. This process is overseen by the probate court, which is responsible for ensuring that the deceased person's debts are paid and their assets are distributed in accordance with their wishes.

The probate process can be time-consuming and expensive. The probate court charges fees based on the value of the deceased person's assets, which can add up quickly. In addition, the process can take several months or even years to complete, depending on the complexity of the estate.

During the probate process, the deceased person's assets are subject to creditors' claims, which means that any debts owed by the deceased person must be paid before their assets can be distributed to their heirs and beneficiaries. This can result in significant delays and complications, especially if there are disputes over the validity of the debts or the distribution of the assets.

Reasons to Avoid Probate

Given the complexity and expense of the probate process, many people choose to avoid it whenever possible. Here are some of the key reasons why you may want to avoid probate:

Time and Cost

As noted above, probate can be a time-consuming and expensive process. The probate court charges fees based on the value of the deceased person's assets, which can be significant for larger estates. In addition, the process can take months or even years to complete, which can be stressful for heirs and beneficiaries who are waiting for their inheritance.


Probate is a public process, which means that anyone can access the court records and see details about the deceased person's assets and debts. This can be uncomfortable for some families, especially if there are sensitive or personal matters involved.


During probate, the probate court has significant control over the distribution of the deceased person's assets. This can lead to disputes and delays, especially if heirs and beneficiaries disagree about how the assets should be distributed. By avoiding probate, you can retain more control over the distribution process and ensure that your wishes are carried out according to your instructions.

Avoiding Creditors' Claims

As noted above, the probate process involves paying off the deceased person's debts before their assets can be distributed to heirs and beneficiaries. By avoiding probate, you may be able to avoid or minimize the impact of creditors' claims on the estate.

Alternatives to Probate

Fortunately, there are several alternatives to probate that may be available to you. Here are some of the most common options:

Revocable Living Trust

A revocable living trust is a legal document that allows you to transfer ownership of your assets to a trust while you are still alive. You can serve as the trustee and retain control over the assets during your lifetime, and then appoint a successor trustee to take over after your death. Because the assets are owned by the trust, they are not subject to probate and can be distributed to your heirs and beneficiaries more quickly and efficiently.

Transfer on Death (TOD) Designation

A Transfer on Death (TOD) designation allows you to name a beneficiary for certain assets, such as bank accounts or securities. When you die, the assets are automatically transferred to the designated beneficiary without going through probate. This can be a simple and cost-effective way to transfer assets to your loved ones without the need for probate.

Joint Tenancy with Right of Survivorship

Joint tenancy with right of survivorship is a way of owning property jointly with another person. When one owner dies, their share of the property automatically transfers to the surviving owner(s), without the need for probate. This can be a useful tool for avoiding probate, but it is important to note that joint tenancy can have its own drawbacks and complications.

Beneficiary Designations

Many financial accounts, such as life insurance policies and retirement accounts, allow you to name a beneficiary to receive the assets upon your death. By doing so, you can avoid the need for probate for those assets. However, it is important to ensure that your beneficiary designations are up-to-date and accurate, as they will supersede any instructions in your will or trust.

Contact a Probate Attorney

At Heritage Law Office, our knowledgeable attorneys can help you navigate the complex legal landscape of probate and estate planning. Whether you are looking to create a trust, update your will, or explore other alternatives to probate, we can provide guidance and support every step of the way. Contact us either online or at 414-253-8500 to schedule a free consultation today.


In conclusion, probate is a complex and expensive process that can be avoided in many cases. By exploring alternatives such as revocable living trusts, beneficiary designations, and joint tenancy, you can ensure that your assets are distributed efficiently and according to your wishes. If you need help with estate planning or probate, contact Heritage Law Office today to schedule a free consultation.

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Frequently Asked Questions (FAQs)

1. What is the probate process and why is it time-consuming?

The probate process is the legal procedure that happens after a person's death to ensure their assets are properly distributed to heirs and to settle any outstanding debts. This process involves several steps, including proving the validity of the deceased's will, inventorying the deceased's property, paying off debts and taxes, and distributing the remaining assets as the will (or state law, if there's no will) directs. This process can be time-consuming due to the legal formalities, paperwork involved, and potential disputes among beneficiaries.

2. What are the fees associated with the probate process?

Probate fees vary depending on the size and complexity of the estate. They typically include court fees, attorney's fees, executor's fees, and appraisal costs. These can add up quickly, especially for larger estates, which is one reason many people seek to avoid probate.

3. Why should I consider alternatives to probate?

Probate can be a lengthy, expensive, and public process. It can take months to years to complete, which can delay beneficiaries from receiving their inheritance. Additionally, probate records are public documents, meaning the value of the estate and to whom assets were distributed become public knowledge. Avoiding probate can help preserve privacy, save time and money, and allow for a smoother, more controlled transition of assets.

4. How can I avoid the probate process?

There are several ways to avoid probate, each with its own advantages and disadvantages. Common methods include establishing a revocable living trust, creating joint ownership of property, designating beneficiaries on accounts, and using Transfer on Death (TOD) designations. You should consult with a probate attorney or estate planning expert to determine the best options for your specific circumstances.

5. How can a probate attorney assist me in estate planning?

A probate attorney can provide expert advice on how to properly plan your estate to meet your specific goals and needs. They can help you understand the probate process, the advantages and disadvantages of different probate avoidance strategies, and guide you through the legal processes involved. They can also assist in creating a comprehensive estate plan, including drafting a will, setting up trusts, and ensuring your assets will be distributed according to your wishes.

Contact Us Today

For a comprehensive plan that will meet your needs or the needs of a loved one, contact us today. Located in Downtown Milwaukee, we serve Milwaukee County, surrounding communities, and to clients across Wisconsin, Minnesota, Illinois, and California.