Should everyone try to avoid probate? The use and misuse of TODs

By: Mark R. Gray

The short answer is no, not everyone should avoid probate. Although some people should, others definitely should not.
Families are complicated, and our society is more so. In this context and in order to decide whether to avoid probate, we should first have a good understanding of what probate is, why we might try to avoid it, what protections and rights we give up, and what else could go wrong.
And while we are contemplating these questions, we should ask ourselves, “what is the goal?” Is the goal to avoid probate, or to assure the orderly transfer of wealth?

What is probate?
Probate is a process for the orderly transfer of assets after a person dies. Instead of thinking of probate as a thing to be avoided at all costs, it is important to first understand that, when a person dies, various legal rights and obligations are impacted. For example, spouses have certain rights (which differ greatly from state to state). Heirs at law (e.g. children) and creditors also have rights; and various tax obligations must be satisfied.

Avoiding probate can deprive these persons of their legal rights, and/or cause an evasion of tax obligations. Probate is unique because it combines due process, civil procedure, and substantive law into one, cohesive, and time-tested set of laws. Instead of a thing to be avoided, probate should be recognized as a process for dealing with the complexities of society and the transfer of assets after death.
Although it is similar from state to state, probate laws are distinctly unique in most states. Iowa has a comprehensive solution for the many issues and problems that arise when a person dies. That solution is found in Iowa Code Chapter 633. 

A. Transfer of property.
If Bob wants to transfer his real estate, he is required to sign a deed and record it with the county recorder. If he wants to sell a vehicle, or sell stock, he must sign something to transfer it to the buyer. Even if Bob wants to take money out of the bank or his investments, he is also required to sign something or authorize the transfer. 

When Bob dies, who is going to sign the deed, or the car title; who is going to sign off on a money withdrawal? Generally, only the State can give someone the authority to sign on Bob’s behalf once he dies. That power of the State resides in the probate judge and is subject to rules designed to protect the rights and due process of persons interested in Bob’s estate.

B. Jurisdiction and due process.
State law gives the probate judge exclusive jurisdiction over Bob’s estate and all issues arising in that estate. § 633.10 and § 633.13. The rules in probate are unique and supersede other rules of procedure. § 633.18; see also § 633.40 et seq.
Upon the filing of a proper petition (§§ 633.290–291), the probate judge has the power to appoint a Personal Representative (which is a generic term for an Executor or Administrator). The Executor is an officer of the court (or fiduciary) and has various powers; however, those powers come with significant duties. § 633.63 et seq. Under the Probate Code, Executors are liable to the estate or persons interested in the estate. § 633.155 et seq.

Click here to read the full article published in The Iowa Lawyer March 2026 Magazine.