The 87% Problem: Why More Than 3/4 of Americans Are Setting Their Families Up for Probate Disaster
There's an 87% chance that when you pass away, your family will be forced into probate court—a slow, expensive, and mandatory legal process that will reduce what your loved ones inherit. Let that sink in for a moment.
According to the groundbreaking 2025 Trust & Will Estate Planning Report (the largest survey of its kind, with 10,000 respondents), 55% of Americans have no estate planning documents whatsoever. Zero. No will, no trust, nothing.
Even worse? Of those who do have something in place, only 11% have established a living trust—the one document that actually protects your family from probate court.
This means the vast majority of Americans are unknowingly setting their loved ones up for a financial and emotional nightmare during one of the worst times of their lives.
What Is Probate Court? (And Why Should You Fear It?)
Probate is the legal process the government uses to settle your estate after you die. It's the court system's way of making sure your debts get paid and your assets get distributed.
Sounds reasonable, right?
Here's the problem: Probate is slow, expensive, and public. It's designed to protect the government's interests and creditors—not your family.
The Three Probate Nightmares
1. The Financial Nightmare: Probate Eats Your Estate
Probate costs typically range from 5% to 10% of your estate's total value. This isn't a one-time small fee—this is a massive chunk of everything you've worked your entire life to build.
Let's break down what this actually means:
$250,000 estate: Lose $12,500-$25,000 to probate
$500,000 estate: Lose $25,000-$50,000 to probate
$1,000,000 estate: Lose $50,000-$100,000 to probate
In California, for example, statutory fees alone can exceed $16,000 on a $500,000 estate before court costs, appraisal fees, and administrative expenses are even added. A $1 million estate faces approximately $46,000 in combined attorney and executor fees, based on California's statutory fee schedule.
These costs include:
Court filing fees (starting at $435 in California)
Attorney fees (often 4% of estate value or more)
Executor fees (typically 3-5% of estate value)
Probate referee fees for asset appraisals
Publication fees for creditor notices
Administrative costs
Accounting fees
And here's the kicker: These fees are calculated on the GROSS value of your estate—before debts are paid. So your family could be paying thousands of dollars in fees on assets they won't even keep.
2. The Time Nightmare: Your Family's Assets Are Frozen
The probate process in most states takes 9 to 18 months minimum. Complex estates can drag on for years.
During this entire time, your family cannot access most of the assets. Need to sell the house to pay bills? Sorry, it's frozen. Want to access bank accounts? Nope, locked up. Need funds for funeral expenses or immediate living costs? They'll have to pay out of pocket while your assets sit in legal limbo.
This creates devastating financial pressure on families who are already grieving. They're forced to cover all their expenses with their own money while watching your estate's value slowly drain away in fees.
3. The Privacy Nightmare: Everything Becomes Public
When your estate goes through probate, everything becomes public record. Anyone can walk into the courthouse or search online to see:
The full value of your estate
Every asset you owned
Every debt you owed
Who your beneficiaries are
How much each person is inheriting
Family disputes and conflicts
This public exposure can:
Make your beneficiaries targets for scams and fraud
Expose family financial situations
Create embarrassment and privacy violations
Invite lawsuits from distant relatives or creditors
The Uncomfortable Truth: A Will Doesn't Protect Your Family from Probate
This is where most Americans get it wrong.
Having a will does NOT avoid probate. In fact, a will is essentially a set of instructions for the probate court to follow. All a will does is tell the judge how you want your assets distributed AFTER they go through the entire probate process.
According to 2025 data from Caring.com, only 24% of Americans have a will—down from 33% in 2022. But even these "prepared" individuals haven't protected their families from probate court.
Why Do So Many People Think a Will Is Enough?
There are three main misconceptions:
"I don't have enough assets to worry about this." False. Even modest estates face thousands in probate costs. If you own a home, have a bank account, or possess any property like furniture or jewelry, probate applies to you.
"Probate only affects rich people." Wrong. Probate affects estates of all sizes. The percentage-based fees actually hurt middle-class families more because they can't afford to lose 5-10% of their wealth.
"My lawyer said I just need a will." Some attorneys either don't specialize in estate planning or earn more from probate cases than from setting up trusts. Always get a second opinion from a trust and estate specialist.
The One Solution That Actually Works: A Properly Funded Living Trust
A living trust (also called a revocable living trust) is the only estate planning tool that allows your assets to bypass probate entirely.
Here's how it works:
What Is a Living Trust?
A living trust is a legal document that holds your assets during your lifetime and distributes them to your beneficiaries after you die—without court involvement.
Think of it as a container:
You create the trust (you're the "grantor")
You transfer your assets into it (this is called "funding" the trust)
You maintain complete control as the "trustee" during your lifetime
You name a successor trustee to distribute assets after you die
Everything happens privately, quickly, and without probate court
The Funding Step: Why Most Trusts Fail
Creating a trust document is only half the battle. You must "fund" your trust by transferring ownership of your assets into it.
This means:
Retitling your home and real estate in the trust's name
Changing bank account ownership to the trust
Transferring investment accounts to the trust
Updating business ownership documents
Reassigning beneficiaries on life insurance and retirement accounts
This is why we don't just set up our clients' trust and send them on their way. We provide full support in getting their assets titled in the trust's name.
The 2025 Trust & Will Report found that many people who create trusts never properly fund them. An unfunded trust is essentially worthless—those assets will still go through probate.
This is the most common estate planning mistake, and it's why working with experienced professionals is crucial.
Who Actually Needs a Trust?
The simple answer: If you own ANYTHING, you need a trust.
Specifically, you need a living trust if you own:
A home or any real estate
Bank accounts or investment accounts
A business or business interest
Vehicles
Cryptocurrency or digital assets
Valuable personal property (jewelry, art, collectibles, firearms)
Life insurance policies
Retirement accounts
Notice something? This describes virtually every adult American.
The "I Don't Have Enough Assets" Myth
The 2025 Trust & Will Report revealed that 31% of Americans without estate plans believe they "don't have enough assets to warrant an estate plan." This perception is especially common among lower-income households and less-educated individuals.
But here's the truth: Probate doesn't care about your asset level. Whether you have $100,000 or $10 million, the probate process applies the same rules and extracts the same percentage-based fees.
In fact, middle-class families are hurt MORE by probate because:
They can't afford to lose 5-10% of their wealth
They don't have liquid assets to cover immediate expenses during the 9-18 month freeze
They may have inherited property they need to sell to pay probate fees
The Cost-Benefit Analysis: Trust vs. Probate
Let's do the math on a typical middle-class estate worth $500,000:
Probate Route:
Probate fees: $25,000-$50,000
Time frozen: 9-18 months
Privacy: Everything public
Family stress: Maximum
Net to family: $450,000-$475,000
Living Trust Route:
Trust creation cost: $4,000-$5,000
Distribution time: 2-4 weeks
Privacy: Complete
Family stress: Minimal
Net to family: $495,000-$496,000
The living trust saves your family $20,000-$21,000 and months of stress—all for a one-time investment of a few thousand dollars.
Why 87% of Americans Are Completely Unprotected
If the solution is so clear, why are 87% of Americans completely unprotected?
The 2025 research identified the top barriers:
Procrastination (30%): "I haven't gotten around to it yet." This is the #1 reason people give for not having an estate plan.
Perceived irrelevance (31%): "I don't have enough assets." As we've discussed, this is a dangerous misconception.
Knowledge gap (27%): "I don't know where to start." Estate planning feels overwhelming and confusing.
Cost concerns (18%): Ironically, people worry about paying $3,000 for a trust while risking $30,000+ in probate fees.
Discomfort with mortality (implied): Nobody likes thinking about death. But avoiding the topic doesn't protect your family.
The Generational Divide
Estate planning preparedness varies dramatically by age:
Gen Z and Millennials: Least prepared, most likely to procrastinate
Gen X: Middle ground, starting to take action
Baby Boomers: Most prepared, but many still only have wills (not trusts)
The data shows a disturbing pattern: People wait until major life events (serious illness, retirement, loss of a spouse) to finally create estate plans. By then, options may be limited and costs may be higher.
The Real Stories: What Happens Without a Trust
Let me paint you a picture of what actually happens when someone dies without a properly funded trust:
Day 1-30: Family is grieving. They need to pay for funeral expenses, death certificates, ongoing bills, mortgage payments. But all accounts are frozen. They pay out of pocket.
Month 2-4: They hire a probate attorney (required in most cases). Initial filing fees are paid. The waiting game begins. Nothing can be sold or transferred.
Month 5-9: Creditors are notified via public notice. Anyone with a claim gets a chance to come after the estate. Family disputes may arise over asset distribution. Often this turns into full blown lawsuits. Every step requires court approval.
Month 10-18: Assets are finally appraised. Fees are calculated. Family members watch as 5-10% disappears to pay attorneys, executors, court costs, and administrative fees. Everything is public record—neighbors, distant relatives, and scammers all know exactly what the family inherited.
Month 18+: Assets are finally distributed. Total time: 1.5-2+ years. Total cost: Tens of thousands of dollars. Total stress: Immeasurable.
With a trust: The family meets with the successor trustee within days. Assets are distributed within 2-4 weeks. Private. Quick. Inexpensive. The way it should be.
Taking Action: How to Protect Your Family Today
If you're in the 55% who have no estate plan, or the 31% who only have a will, or the 87% who do not have a funded trust, here's what you need to do:
Step 1: Acknowledge the Reality
Stop telling yourself "I'll get to it someday" or "I don't have enough to worry about." Your family deserves better than probate court.
Step 2: Consult with a Trust & Estate Specialist
Not all attorneys are equal. You need someone who specializes in living trusts and estate planning—not a general practitioner who occasionally drafts wills.
Look for:
Specific experience with living trusts (not just wills)
Clear explanations of the funding process
References from past clients
Transparent pricing
Step 3: Create a Comprehensive Plan
A complete estate plan includes:
Living trust (the foundation)
Pour-over will (catches any assets not in the trust)
Power of attorney (financial and healthcare)
Living will/healthcare directive (medical wishes)
HIPAA authorization (medical information access)
Step 4: Fund Your Trust Properly
This is where most people fail. Make sure:
All real estate is retitled
Bank and investment accounts are transferred
Business interests are reassigned
Beneficiary designations are updated
Step 5: Review and Update Regularly
Life changes. Your estate plan should too. Review your trust:
After major life events (marriage, divorce, births, deaths)
When you acquire significant new assets
Every 3-5 years as a standard practice
Keep in mind that attorneys will charge you by the hour for any updates you want to make to your estate. And updates are inevitable. With us however, there are zero fees for updates. You get lifetime support, no extra fees, yet a full team of attorneys behind every update you need.
The Bottom Line: Don't Let the Government Plan Your Estate
Right now, if you die, the government has a plan for your estate. It's called probate court.
It's slow. It's expensive. It's public. And it will cost your family thousands of dollars and months of stress during one of the worst times of their lives.
Or you can create your own plan—a properly funded living trust that protects your family, preserves your wealth, and honors your legacy.
The choice is yours. But doing nothing IS a choice—and it's the worst one you can make.
Take the Next Step
Don't be part of the 87%. Don't let your family suffer through probate court.
Enduring Legacy Mentors has been helping families in estate planning for nearly 30 years. We specialize in creating and funding living trusts that actually work.
📞 Schedule a free consultation.
🌐 Learn more: enduringlegacymentors.com
Let's build a plan that protects what you've spent your life building—and the people you love.
