Problems with Probate

Many of us hope to leave something behind for our loved ones when we pass away. But the probate process is complex. To understand how to better manage potential probate fees, let’s explore what probate is and how the process works.

What Is Probate?

Probate is the legal process that wraps up a person’s legal and financial affairs after their death. During the probate process, a person’s property is identified, cataloged, and appraised. In addition, probate makes certain any outstanding debts and taxes are paid. It can be a complex process filled with very specific legal requirements.

For example, if someone dies without a valid will, the probate court sees that the deceased person’s assets are distributed according to the laws of the state.

If someone dies with a valid will, the probate court is charged with distributing the deceased person’s assets according to their wishes.

Probate Process

Every estate passes through probate following the owner's death. Probate can take anywhere from a few months to more than a year. If there is a will, and one or more of the heirs chooses to contest the document, the process can take a lot longer.1

Probate also can be expensive. Even though probate costs are capped in some states, they can easily cost 3 to 7 percent or more of the estate’s value. That’s calculated on the gross value of the estate – before taxes, debts, and other expenses are paid. And if the probate process is challenged, legal costs can rise.2

Finally, probate takes place in a public court. That means everything is a matter of public record, so there is no privacy. Anyone can find out exactly what was left behind and how much each of a deceased person’s heirs received. They can also review the court records for the deceased person’s estate. Those who have concerns for their heirs’ privacy may want to take steps to manage the probate process.

Property That May Avoid Probate

Some assets can be structured, so they may not have to go through probate. Here’s a partial list of assets that may avoid the probate process:

1. Property held in a trust3
2. Jointly held property (but not common property)
3. Death benefits from insurance policies (unless payable to the estate)4
4. Property given away before you die
5. Assets in a pay-on-death account
6. Retirement accounts with a named beneficiary

FAQs About Probate

• What is probate and why does it matter?

  Probate is the legal process used to settle a person’s estate after they pass away. It involves identifying assets, paying debts and taxes, and distributing property according to a will or state law. Probate matters because it can take time, create legal expenses, and make estate details part of the public record. Working with a financial professional such as Atlantic Wealth Advisors can help families understand strategies that may help simplify estate settlement.

• How long does the probate process usually take?

  The probate process can take anywhere from several months to more than a year depending on the complexity of the estate, whether a valid will exists, and if any disputes arise among heirs. Estates involving contested wills or complicated assets may take significantly longer to settle.

• Is probate expensive?

  Yes, probate can be costly. Fees may include court costs, attorney fees, executor fees, and administrative expenses. In some cases, probate expenses can total between 3% and 7% or more of an estate’s gross value. Proper estate planning may help reduce unnecessary costs for beneficiaries.

• Does every estate have to go through probate?

  Not necessarily. Certain assets may bypass probate if they are structured correctly. Examples can include assets held in a trust, jointly owned property, retirement accounts with named beneficiaries, payable-on-death accounts, and life insurance proceeds paid directly to beneficiaries rather than the estate.

• What happens if someone dies without a will?

  If a person passes away without a valid will, state intestacy laws determine how assets are distributed. The probate court oversees the process and decides who inherits the estate based on state guidelines rather than the deceased person’s personal wishes.

• Are probate records public?

  Yes. Probate proceedings typically occur in public court, meaning estate details become part of the public record. This can include information about assets, debts, beneficiaries, and distributions. Individuals concerned about privacy often explore estate planning strategies designed to keep certain assets outside of probate.

• How can estate planning help minimize probate complications?

  Estate planning can help organize assets, clarify wishes, and potentially reduce delays and expenses for heirs. Strategies such as establishing trusts, updating beneficiary designations, and reviewing account ownership structures may help certain assets transfer more efficiently. Atlantic Wealth Advisors can work alongside estate planning attorneys and tax professionals to help individuals evaluate options aligned with their financial goals.

1. Investopedia.com, September 2, 2025
2. ProbateCalculator.org, March 25, 2026
3. Using a trust involves a complex set of tax rules and regulations. Before moving forward with a trust, consider working with a professional who is familiar with the rules and regulations.
4. Several factors will affect the cost and availability of life insurance, including age, health and the type and amount of insurance purchased. Life insurance policies have expenses, including mortality and other charges. If a policy is surrendered prematurely, the policyholder also may pay surrender charges and have income tax implications. You should consider determining whether you are insurable before implementing a strategy involving life insurance. Any guarantees associated with a policy are dependent on the ability of the issuing insurance company to continue making claim payments.

The content is developed from sources believed to be providing accurate information. The information in this material is not intended as tax or legal advice. It may not be used for the purpose of avoiding any federal tax penalties. Please consult legal or tax professionals for specific information regarding your individual situation. This material was developed and produced by FMG Suite to provide information on a topic that may be of interest. FMG, LLC, is not affiliated with the named broker-dealer, state- or SEC-registered investment advisory firm. The opinions expressed and material provided are for general information, and should not be considered a solicitation for the purchase or sale of any security. Copyright 2026 FMG Suite.

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