Book a consultation
Send us a message
a gavel hovering above a house

Why is probate a bigger threat to your estate than taxes?

by Legacy Plan
October 13, 2023

Both probate and taxes can be threats to your estate, but they pose different risks. Probate is a threat to all estates, regardless of size or complexity. In contrast, estate taxes are only a threat to estates that are valued above the federal and state estate tax exemptions.

So, which is a bigger threat to your estate – probate or taxes?

It depends on the size and complexity of your estate. If your estate is valued below the estate tax exemptions, then probate is the bigger threat. The federal estate tax exemption rose to $12.92 million in 2023 for individuals and $25.84 million for married couples filing jointly. This means that only estates valued above these amounts are subject to the federal estate tax. Some states also impose estate taxes, but the exemptions are at least $1 million (Massachusetts and Oregon) and $1.73 million in Rhode Island, the state with the next lowest exemption amount.

What is probate?

Probate is a legal process that occurs after a person's death in which their will is validated. If there is no will or the will is not valid, probate is a court-supervised process intended to ensure that the deceased's assets are distributed according to state intestacy laws.

The process involves identifying and inventorying the deceased person's property, appraising the property to pay debts and taxes and distributing the remaining assets to the rightful heirs or beneficiaries. While it serves as a means to orderly settle an estate, probate is often seen as cumbersome due to its public nature, potential to provoke family disputes, extensive costs, delays and bureaucratic hassles.

These issues make probate an essential consideration in estate planning, encouraging individuals to seek strategies to mitigate its impact or avoid it altogether.

Why is probate expensive?

Probate is notorious for its exorbitant costs and fees. When considering the expenses associated with probate, it is crucial to understand the various factors that contribute to its high price tag.

One significant factor is the legal fees involved in hiring an attorney to guide you through the complex probate process. Attorneys typically charge a percentage of the estate's value or an hourly rate, which can quickly add up, especially for larger estates.

Booklet opening animation of our free requestable booklet 'Understanding the Probate Process'

Moreover, probate often necessitates additional costs such as court filing fees, appraisal fees to determine the value of assets, executor fees for managing the estate's affairs and accounting fees to prepare financial reports. These expenses can accumulate rapidly and substantially decrease what beneficiaries or heirs ultimately receive from their inheritance.

Another reason why probate tends to be expensive is due to its time-consuming nature. The longer it takes for an estate to go through probate, the higher the costs become.

During this period, assets may need maintenance or supervision by professionals like real eatate agents or financial advisors. Also, heirs may face delays in receiving their inheritance while waiting for court approval and distribution processes — a situation that can increase the financial strain.

Additionally, if disputes arise among family members or other parties involved in the probate proceedings (such as contests over inheritances), there may be even more legal expenses incurred during litigation. These conflicts can lead to extended court battles and increased legal fees — an unfortunate consequence that further drives up overall costs.

Why does probate take so long to complete?

Probate is often notorious for its lengthy process, causing frustration and delays for heirs and beneficiaries. There are several reasons why probate takes so long to complete, each contributing to the overall timeline. One of the primary factors that prolongs probate is the legal requirements and formalities involved.

The court requires meticulous documentation and verification of assets, debts and liabilities of the deceased individual's estate. This process can be time-consuming as it involves compiling a comprehensive inventory of all assets including real estate, investments, bank accounts, personal belongings and more.

Also, creditors must be notified and given an opportunity to make claims against the estate. This step alone can significantly extend the duration of probate.

Another crucial aspect that contributes to the delay in probate is court scheduling. The court's calendar can be crowded with numerous cases, resulting in limited availability for hearings and proceedings related to estates under probate.

The court's priority is to ensure fairness in handling all matters before it; however, this prioritization may inadvertently cause delays in processing individual cases. Another factor affecting the timeframe of probate is potential conflicts or disputes among heirs or beneficiaries regarding distribution or validity of the will.

Disputes over inheritance rights or disagreements over asset allocations can lead to contested litigation that adds another layer of complexity to an already time-intensive process.

What problems can occur with probate's lack of privacy?

When it comes to the lack of privacy in probate, several problems can arise that may have lasting implications for both the deceased's estate and their beneficiaries or heirs. One major concern stems from the fact that probate proceedings are typically a matter of public record. This means that all details regarding the estate, including its assets, debts and beneficiary information, become accessible to anyone who wishes to view them.

Such transparency can lead to potential security risks and make beneficiaries vulnerable to scams or fraudulent activities. Another issue with probate's lack of privacy is that it can create tensions among family members and other interested parties.

When an estate goes through probate, it becomes a matter of public discussion and scrutiny. This exposure often fuels disputes over inheritance, as individuals might contest the validity of the will or challenge certain provisions within it.

These conflicts can irreparably damage relationships and prolong the entire probate process, making it even more burdensome for those involved. Plus, some individuals may have legitimate reasons for wanting their financial affairs kept private after they pass away.

For example, business owners who have closely guarded trade secrets or high-profile individuals who wish to maintain their financial privacy may find themselves at odds with the open nature of probate proceedings. The lack of confidentiality in probate can compromise sensitive information and potentially harm businesses or reputations.

To mitigate these issues surrounding privacy in probate, many people turn to alternative estate planning methods such as revocable living trusts or other strategies aimed at avoiding probate altogether. By utilizing such techniques, individuals can ensure that their estates remain confidential while still providing for their heirs according to their wishes.

It is crucial for anyone concerned about privacy and safeguarding their assets to consult with an experienced estate planning attorney who can guide them through the various options available and help design a comprehensive plan tailored specifically to their needs. One should not underestimate the potential problems arising from probate's lack of privacy.

From security risks and family disputes to compromised confidentiality, the public nature of probate can significantly impact an estate and its beneficiaries. Taking proactive steps to avoid probate through thorough estate planning can not only protect privacy but also streamline the distribution of assets, minimize expenses and reduce potential conflicts among heirs and beneficiaries.

What stress and emotional toll can probate cause?

husband and wife looking at a compuer stressed

Probate, with its lengthy and complex process, can take a toll on individuals emotionally and add significant stress to an already challenging time. The emotional burden stems from several factors that arise during probate proceedings.

First and foremost is the grief and loss experienced by the family members or loved ones left behind. Dealing with the passing of a loved one is already a difficult process, but having to navigate through probate only adds to the emotional strain.

Another source of stress in probate proceedings is the potential for conflicts among heirs or beneficiaries. Disputes over inheritance can lead to strained relationships, bitter arguments and even lawsuits.

Unfortunately, disagreements over estate distribution are not uncommon during probate. Siblings may find themselves at odds over who gets what, leading to fractured family dynamics and lasting rifts between once-close relatives.

Moreover, probate's slow pace can exacerbate these emotional challenges. The prolonged timeline of the probate process prolongs the distress for individuals involved, as they are forced to wait months or even years for resolution.

This waiting period can be particularly frustrating when there is an urgent need for access to funds tied up in the estate or if beneficiaries are dependent on their inheritance for financial stability. The lack of privacy in probate proceedings can add an extra layer of stress and discomfort for those involved.

Why can assets be frozen during probate?

During the probate process, it is not uncommon for assets to be frozen temporarily. This can cause significant inconvenience and financial strain for the beneficiaries and heirs of the estate.

There are several reasons why assets may be frozen during probate, primarily aimed at ensuring the proper administration of the estate. One reason for freezing assets is to prevent unauthorized transactions or transfers.

When an individual passes away, their estate enters probate to settle any pending claims, pay off debts and distribute assets according to their will or intestacy laws. To safeguard the estate during this time, courts often issue an order freezing the assets until a personal representative, executor or administrator is appointed.

This prevents any unauthorized access or disposition by potential heirs or beneficiaries who may have conflicting interests. Another reason for an asset freeze is to address disputes or contests that may arise during probate proceedings.

In some cases, disagreements between family members, creditors or other interested parties can lead to legal challenges regarding the validity of a will or the rightful distribution of assets. To preserve the integrity of these contested assets until a resolution is reached, courts may impose an asset freeze as a protective measure.

Furthermore, an asset freeze can also serve as a means to ensure adequate provision for taxes and expenses related to probate administration. By temporarily curtailing access to liquid assets within an estate, authorities can ensure that sufficient funds are available to cover any outstanding tax liabilities and administrative fees that need to be settled as part of probate proceedings.

Are asset distributions under the court's control during probate?

During the probate process, one of the key concerns for individuals involved is whether asset distributions are under the court's control. It is essential to understand that probate involves the court overseeing the distribution of assets according to the deceased person's will or state intestacy laws if there is no will. However, this does not mean that all aspects of asset distributions are entirely under the court's control.

Probate often begins with an inventory and appraisal of all assets within the estate. This includes real estate properties, bank accounts, investments, personal belongings and other valuable possessions.

After gathering this information, it is presented to the court for review and approval. Once approved, these assets can be distributed according to the instructions outlined in the will or according to state laws if no will exists.

However, it's important to note that certain factors can influence how much control the court has over asset distributions during probate. For instance, if there are disputes among beneficiaries or challenges regarding specific bequests in the will, it might require additional court intervention to ensure a fair resolution.

In such cases, asset distributions may be delayed until these matters are resolved by a judge. Also, in some instances where an estate faces financial difficulties or outstanding debts exceed available funds/assets within the estate — liquidation might be necessary.

The court may have more control in such situations as it seeks to prioritize creditor payments over beneficiaries' interests. The liquidation process ensures that outstanding debts are settled before any remaining assets are distributed among heirs or beneficiaries.

Does probate have tax implications?

estate tax return document

While probate primarily deals with the legal process of distributing assets after someone's death, it is important to consider the potential tax implications that may arise during this process. Probate can indeed have tax implications, and understanding these ramifications is crucial for effective estate planning. One significant tax consideration in probate is the estate tax.

As mentioned, however, the federal estate tax exemption is $12.92 million (2023) per individual, which impacts less that .1 percent of Americans, according to published reports. Some states also assess estate or inheritance taxes, but only an estimated 3% of estates are impacted at the state level. The size of the estate, as well as specific state laws, will determine whether or not an estate is subject to taxation at the state level.

Additionally, probate can also trigger capital gains taxes on certain assets held by the deceased individual. When beneficiaries sell inherited assets during probate or shortly after receiving them, any increase in value from its original purchase price can be subject to capital gains taxes.

This scenario commonly occurs when beneficiaries decide to liquidate property or investments left behind by the deceased individual. Properly understanding these potential capital gains taxes within the context of probate can help heirs make informed decisions about whether to retain or sell inherited assets.

Furthermore, it is essential to recognize that different types of assets within an estate may have varying tax consequences during probate. For instance, retirement accounts like IRAs (individual retirement accounts) and 401(k)s could potentially trigger income taxes upon distribution to beneficiaries.

It is worth noting that non-retirement investment accounts might also be subject to income taxation depending on several factors such as their cost basis and any appreciation they have experienced over time. Although many people primarily associate probate with legal processes rather than tax issues, it is crucial not to overlook the potential tax implications involved in this complex procedure.


It is evident that probate poses a significant threat to one's estate compared to taxes. The inherent expenses and fees associated with the probate process can quickly erode the value of an estate, leaving beneficiaries with a significantly reduced inheritance.

Moreover, the lengthy duration of probate proceedings can cause undue stress and emotional strain on beneficiaries or heirs who are eagerly awaiting their share of the estate. Furthermore, the lack of privacy during probate can be a major concern for individuals seeking to safeguard their assets and protect their beneficiaries.

Probate proceedings are public record, meaning that anyone can access information regarding the distribution of assets and names of beneficiaries. This lack of privacy can potentially expose heirs to unwanted attention or even make them targets for fraudulent activities.

Additionally, it is crucial to note that during probate, certain assets may be frozen until the court has completed its evaluation and distribution process. This freeze on assets could lead to financial difficulties for beneficiaries who may have relied on immediate access to funds from the estate.

When considering all these factors, it becomes clear that proper estate planning is essential in order to minimize the impact of probate on one's estate and heirs. By engaging in measures such as establishing trusts, creating wills with clear directives or utilizing other legal strategies available through estate planning professionals, individuals can ensure a smoother transition of their assets while mitigating potential risks associated with probate.

While taxes may often be perceived as a significant threat to one's estate planning goals, it is crucial not to overlook the more substantial risks posed by probate. By taking proactive steps toward effective estate planning techniques and minimizing reliance on the probate process whenever possible, individuals can provide their beneficiaries with more secure legacies while enjoying peace of mind during their lifetimes.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

Phone - 844.445.3422
Email -
25 common estate planning mistakes booklet

Don't make estate planning mistakes. Avoid common mistakes with our free guide,
"25 Common Estate Planning Mistakes"

Legacy Assurance Plan Shield Logo
Subscribe to Our Monthly Newsletter!

We won't share your email, and we make it easy to unsubscribe!