The summer after Roger Mauer’s wife died, he drove from Fond du Lac to sit down with an estate attorney about settling her estate. Diane had a will. A thorough, properly executed will they’d had drafted a decade earlier when they bought their cabin up north. Roger had a folder with every document they’d ever signed, and he brought the whole thing.
The attorney was kind about it. He explained that the house on the west side of town and the brokerage account Diane had opened in her own name years ago were both going to probate. The will named Roger as the beneficiary of everything. That didn’t change the outcome. Probate doesn’t much care what your will says. It looks at how your assets are titled and how they’re structured, and it goes from there.
Eleven months later, the estate was settled. Attorney fees came to $13,500 on an estate worth roughly $290,000. Roger got the house in his name and the investment account transferred and the whole thing behind him. Then he came to see me.
“Diane thought the will handled it,” he said. “I thought the will handled it. The attorney who drafted it never said anything different.”
That sentence is the one I keep hearing.
Probate is the court process that activates when you die with a will. A judge validates the document, confirms your mental capacity when you signed it, appoints your executor, and oversees the distribution of your assets. It is meant to be orderly. It is, in the same way that the DMV is orderly. It works. It just takes a long time and costs more than almost anyone expects.
In most states, probate runs six to eighteen months for a straightforward estate. In California, where the probate code is a document of impressive complexity, it can stretch to two years, and attorney fees are set by statute at a percentage of the estate’s gross value: four percent of the first $100,000, three percent of the next $100,000, two percent of the next $800,000. On a California estate worth $600,000 (a modest number for California real estate), you’re looking at $15,000 in statutory attorney fees before the attorney addresses a single complication. And the executor is entitled to the same fee schedule.
Other states are less predictable but not more affordable. Attorney fees typically run two percent to five percent of the estate’s gross value. Gross value, not net. A house worth $400,000 with a $150,000 mortgage sitting on it counts as $400,000 in the fee calculation. You’re paying on the full asset value, not your equity in it. Court filing fees, appraisal fees, and executor compensation come on top of that.
These are real dollars paid from the money you left your family. Roger’s $13,500 was as real as any check he’d written in his life.
There’s one more piece that doesn’t come up often enough in these conversations: probate is public. Your will, your beneficiaries, your assets, the appraised value of everything you owned. All of it goes into court records that anyone can access. If that has never occurred to you, let it occur to you now.
Here is the part that matters most, the part the original estate attorney didn’t mention to Roger and Diane: most probate is optional.
It happens not because the law requires it, but because people didn’t know there were better options available to them. Those options have existed for decades. They’re not exotic or expensive or complicated. They’re the tools of ordinary estate planning, and most families don’t hear about them until they’re already in a courtroom.
There are four of them worth knowing.
Living trusts. A revocable living trust is a legal container you create while you’re alive. You transfer your assets into it: your house, your bank accounts, your investment accounts. The trust owns them, but you control the trust. You’re the trustee. You can buy and sell, spend money, change beneficiaries, or dissolve the whole arrangement any time you want. Nothing changes in how you use your money day to day.
The difference appears when you die. Assets inside the trust don’t go through probate. They pass directly to your beneficiaries according to the trust’s instructions, managed by the successor trustee you named, usually within weeks rather than months. No court, no judge, no probate attorney. The timeline that cost Roger eleven months drops to a matter of paperwork.
The cost of setting up a revocable living trust with an estate planning attorney runs $1,500 to $3,000 for a married couple depending on where you live and how complex your situation is. Roger paid $13,500 afterward. That arithmetic isn’t subtle.
I wrote a companion piece, Living Trust vs. Will, that goes deeper on when a trust makes financial sense and when a well-structured will with proper beneficiary designations is sufficient. That’s the piece to read after this one if you want the full decision framework.
The one trap I see constantly with trusts: the unfunded trust. Someone pays $2,000 for a carefully drafted trust and then never actually transfers their assets into it. It sits in a drawer. They die with their house, their bank accounts, and their investments still titled in their own name. The trust is an empty container. Everything goes through probate anyway. Your attorney should walk you through retitling your assets into the trust. If they don’t offer, ask. If they won’t help, find a different attorney.
Beneficiary designations. Your retirement accounts (401(k), IRA, 403(b), pension) pass directly to whoever is listed as beneficiary on the account paperwork. Not through your will. Not through probate. The beneficiary designation controls, and it overrides everything else in your estate plan. Life insurance works the same way.
This means your retirement accounts already bypass probate for most people, without any additional planning required. The account transfers directly to the named beneficiary once the plan administrator receives a death certificate and a completed claim form. No courts, no delays, no attorney fees.
The problem is outdated or incorrect designations. An ex-spouse still listed on a $300,000 IRA because no one updated the form after the divorce. A deceased parent named on a $200,000 life insurance policy, which now sends the death benefit into probate because the named beneficiary no longer exists to receive it. A designation that says “my estate,” which someone filled in thinking it was simpler, and which achieves the precise opposite of simplicity.
Check your beneficiary designations. Every retirement account. Every insurance policy. Every account that has one. If anything is wrong or outdated, fix it this week. It takes thirty minutes and costs nothing. I’ve had this conversation with families who would have given a great deal to spend that thirty minutes.
TOD and POD accounts. Transfer-on-Death designations for investment accounts. Payable-on-Death for bank accounts. These are additions you make to existing accounts that let them function the same way retirement accounts do, passing directly to a named person outside of probate when you die.
You add a TOD or POD beneficiary at your bank or brokerage. The account stays entirely yours during your lifetime. You control it completely. Nothing changes. When you die, it passes to the named person without court involvement, usually within a few weeks of them providing a death certificate.
Most banks offer this at no cost. Most brokerage firms offer it at no cost. You fill out a form. For many people, adding TOD designations to their non-retirement investment accounts and POD to their bank accounts eliminates the largest probate exposures they have.
Diane had a brokerage account worth roughly $180,000 with no beneficiary designation and no TOD on file. It was one of the two assets that went through probate. A form she could have completed at any point would have sent it directly to Roger without the court and without the fees.
Joint ownership with right of survivorship. When you own property as joint tenants with right of survivorship, the asset passes automatically to the surviving owner when one of you dies. No probate. The title transfers by operation of law. This is how many married couples hold their home, often without fully understanding why: it’s a clean, automatic transfer mechanism.
The limitation worth knowing: joint tenancy solves the first death in a couple. When the surviving spouse dies, that asset is now in their name alone. Without other planning in place, it goes through probate. Joint ownership doesn’t eliminate the problem for an estate. It postpones it by one generation. If you own your house jointly and have no other probate planning, you’ve protected your spouse and left your children with the work you didn’t finish.
Here’s the practical synthesis: most people can eliminate the bulk of their probate exposure without a trust.
Fix your beneficiary designations on retirement accounts and insurance policies. Add TOD to investment accounts. Add POD to bank accounts. Confirm that your real estate ownership structure does what you think it does. For many people, doing those four things leaves almost nothing in their estate that would actually go through probate. The house, often the largest single asset, is typically the holdout, which is where a trust or a TOD deed makes sense.
A trust is worth building when you own real estate in more than one state (each state has its own probate, and without a trust you’re navigating two simultaneous court processes), when you want to control how and when your beneficiaries receive their inheritance, when privacy matters for your situation, or when the overall complexity of your estate warrants it. The Living Trust vs. Will piece covers that decision in detail.
If the trust feels like too much to sort out right now, start smaller. Pull out a recent IRA or 401(k) statement and find the beneficiary section. Is the right person listed? Is there a contingent beneficiary in case the primary beneficiary dies before you? Call your bank this week and ask whether your accounts have POD designations. If they don’t, ask what it takes to add one.
You don’t have to get everything done at once. You just have to start before you need it. The part about the fee structures that cost people thousands applies here too: the cost of inaction isn’t zero. It’s just deferred to someone you love.
Roger got everything in order the following spring. Living trust, durable power of attorney, healthcare directive, updated beneficiary designations on every account he owned. He called me after the second appointment to say it had taken two afternoons and $1,900 in attorney fees.
“Eleven months and $13,500 the other way,” he said. “I wish we’d done this years ago.”
It wasn’t complicated. It wasn’t expensive. It just required knowing that the tools existed and using them before the problem arrived.
The tools exist. You know about them now.
