3 Common Options To Avoid Probate

Posted on Nov 7, 2025 by

Many of our estate planning clients want to avoid the probate court process when they pass.

Probate is a process where the court oversees the distribution of your assets upon your death. Probate is needed when assets are “frozen” upon your passing, and no one has the authority to close out a particular account or access a certain asset.

Probate gets a bad reputation because it typically takes between 10-12 months to complete and involves lots of paperwork. In addition, it is a public process, meaning that anyone can go to the courthouse to determine what you owned at the time you died.

One of the most common misconceptions that our clients have is “I have a will, that avoids the probate court process.” Having only a will does not avoid probate; in fact, the probate court oversees the transfer of assets via the will.

There are several ways to avoid the probate court process. Some of the most common options are:

1. Using a revocable living trust for your estate plan instead of a will. Again,only having a will does not avoid probate!

*Note: Whoever holds the assets needs to know that the trust exists and how your shares should be transferred into the trust.

There are several options to fund a trust with your assets:

  • During lifetime with an assignment of ownership or “re-titling” certain assets into the name of the trust, such as updating the name on your real estate deed or changing the ownership on your brokerage or bank accounts.
  • At death using a “transfer on death” designation.
  • At death using a martial property agreement or statement directing non-probate transfer.

2. Listing your assets as “payable on death” (POD) or “transfer on death” (TOD) to your beneficiaries directly.

  • Most banks and credit unions allow you to name specific people or charities as recipients of your accounts at death.
  • Most investment accounts, retirement accounts and life insurance policies allow you to list named beneficiaries.

3. Wisconsin also allows for the use of a Marital Property Agreement (for married couples) or Statement Directing Non-Probate Transfer to transfer assets to your beneficiaries directly. For more information about Marital Property Agreements, check out this blog.

 

Is one option the best one? The answer is no — each option is suitable for different families or estates. An estate planning attorney will help you decide which option is correct depending on the size of your estate, the different tax laws in place at the time, and the composition and dynamics of your family.

 

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Jon L. Fischer

Estate Planning and Elder Law Attorney at McCarty Law LLP
Jon focuses his practice on estate planning, probate matters, and Medicaid planning as he aims to help clients in their time of need.