What is Probate? (And Why You Must Avoid It at All Costs)

Probate is essentially a lawsuit you file against yourself after you die so your creditors can get paid. It is the court-supervised process of validating your Will and distributing your assets. Sounds helpful? It’s not. It freezes your bank accounts, invites creditors to take a slice, and publishes your entire net worth for neighbors to see. If you don’t have a Living Trust, your family is heading straight for this legal traffic jam. Here is exactly what happens behind the courthouse doors.

BMT Legal Team BMT Legal Team · 📅 Feb 2026 · ⏱️ 5 min read · ESTATE › PROBATE
Time
12+ Mo
Assets FrozenWarn
Cost
3-7%
Of Gross ValueWarn
Privacy
Zero
Public RecordWarn
A dusty stack of legal files labeled PROBATE sitting on a table in a dark courtroom under a spotlight

The Probate Reality: A dusty stack of files in an overburdened court system, freezing your family’s inheritance for months or years.

Image Source: bestmoneytip.com

1. The Timeline: Why It Takes Forever

Your family cannot touch the money until the judge says so. Here is the typical schedule.

Standard Probate Timeline (California Example)
Month 1
Filing Petition: Lawyer files to open probate. Assets are frozen.
Month 4
First Hearing: Judge appoints Executor. Letters Testamentary issued.
Month 8
Creditor Period: Creditors have 4 months to claim debts.
Month 14+
Distribution: Judge approves final accounting. Heirs finally get paid.

2. The “Gross Value” Fee Trap

Probate fees are often set by law, and they are brutal because they ignore your debts.

The “Gross Value” Problem
If you own a $1,000,000 home but owe $900,000 on the mortgage, your Equity is only $100,000.
However, the Probate Lawyer and Executor are paid based on the $1,000,000 (Gross Value).
Result: The fees could eat up nearly half of your actual equity.
Estate Value (Gross) Est. Lawyer Fee Est. Executor Fee Total Cost
$500,000 $13,000 $13,000 $26,000
$1,000,000 $23,000 $23,000 $46,000
$2,000,000 $33,000 $33,000 $66,000

*Based on California Probate Code § 10810 (Statutory Fees). Court filing costs (~$1k-$2k) are extra.

3. Zero Privacy

Once a Will enters probate, it becomes a public record.

  • Data Brokers: Marketing companies scan probate filings to find “New Heirs” to target with scams or expensive offers.
  • Nosy Neighbors: Anyone can look up exactly how much money you left and who received it.
  • Disinherited Relatives: It creates a public forum for angry relatives to contest the Will.

4. How to Escape the Trap

You don’t have to go through this.

✅ The Solutions
  • Living Trust: The gold standard. Assets in trust bypass probate 100%.
  • Beneficiary Designations: Pay-on-Death (POD) for bank accounts, Transfer-on-Death (TOD) for brokerages.
  • Joint Tenancy: Owning property with “Right of Survivorship” passes it automatically to the co-owner.

5. Frequently Asked Questions

Does a Will avoid probate?
NO. This is the biggest myth. A Will is literally an instruction manual for the Probate Court. It does not bypass the court; it guides it.
What is the “Small Estate” limit?
If your assets are below a certain threshold (e.g., $208,850 in CA for 2026), you might qualify for a simplified process. But if you own real estate, you almost always exceed this limit.