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3 tactics for testators to keep assets out of probate court

On Behalf of | Feb 24, 2024 | Probate

Probate proceedings can help ensure that someone’s personal representative upholds their last wishes after they die. The courts can help ensure that the distribution of someone’s resources complies with both state law and the estate planning instructions of a deceased individual.

However, probate proceedings require a lot of time and money. Assets that pass through probate court are sometimes at risk of liquidation to facilitate the repayment of creditors. There can also be major delays in the distribution of those resources to someone’s chosen beneficiaries, as probate proceedings can often require more than a year to complete.

There are ways for testators to keep certain resources out of probate court to protect them from creditor claims or to ensure earlier access for their intended beneficiaries. The following are some of the tactics that many people utilize to keep their resources out of probate court.

Strategic gifts

Those in their golden years may have saved more resources than they need for their personal financial stability during retirement. In some cases, their resources might make it more difficult for them to access certain types of state benefits or might be valuable enough to trigger estate taxes. People can make strategic gifts to their beneficiaries every year. If they plan carefully, they can diminish the overall value of their estate while avoiding gift taxes. As an added bonus, they get to watch the beneficiaries enjoy their inheritances.

Arranging for the direct transfer of assets

If someone has valuable financial accounts, such as a well-funded retirement account or a seven-figure savings account, they can keep those assets out of probate court by filing special paperwork. Transfer-on-death designations filed with financial institutions can allow someone’s chosen beneficiary to take control over financial resources after someone’s death. It is also possible to do something similar with real estate by executing a deed as part of the estate planning process.


Individuals who create and fund trusts can prevent some of their property from passing through probate court. The assets used to fund a trust are typically not part of someone’s estate. The resources that someone transfers to a trust are therefore not at risk of liquidation to repay creditors and won’t increase someone’s chances of paying estate taxes. They can also provide more guidance about how and when their beneficiaries use those resources.

The assets that someone holds, their current financial circumstances and the needs of their beneficiaries can all influence the best way to structure an estate plan. Arranging to keep certain property out of probate court can be a smart move for someone who is worried about taxes, creditor activity or the comfort of their beneficiaries.