When families imagine settling a parent’s estate, they picture a number. What they get instead is a calendar. Jason Gaudy, an estate planning and probate attorney at Gaudy Law in Upland, California, splits his practice roughly 50/50 between planning and after-death work, so he watches both versions of the same family, side by side, every week.
What does probate actually cost?
Gaudy puts average probate fees at $15,000 to $20,000. That figure is not the whole bill. He notes it doesn’t include the administrator (the person appointed to run the estate, who gets paid on a comparable scale), and it doesn’t include court costs. Lawyer fees, administrator fees, court costs: three separate lines, all of them coming out of money the family already earned.
He’s not precious about who benefits. His framing is that when a family plans well, people like him make a lot less money on the other side.
Why is time the bigger cost?
Ask him what families actually save by having a trust and he goes past the invoice: “it’s really not the money, it’s the time they’re saving.” He puts the typical probate at about a year, give or take, with the estate held open the whole way. Depending on the circumstances, he’s seen probates run two years.
The comparison on the trust side is short. When a family comes in after a parent dies and the trust was done correctly, Gaudy describes it as a meeting, some questions answered, and then they leave. His office doesn’t see them again, because they don’t need court intervention.
There’s a structural reason the wait is getting worse in California. Gaudy practices mostly in Southern California, and he says the courts that handle these cases are around 30% busier than they used to be as the baby boomer generation ages and the largest transfer of wealth in history moves through the system. Court congestion is jurisdiction-specific; timelines in other states will differ.
Does the delay make family conflict worse?
In his experience, yes, and it’s the part people underestimate. If two siblings already disagree about something, he says the surest way to make it worse is to let it drag out. Probate supplies the drag.
Probate also removes a decision the parents could have made themselves. In a probate, Gaudy points out, any of the children can be appointed to run the estate, and that appointment alone can turn into a fight.
What’s the #1 mistake that lands trust families in litigation?
This is the part worth reading twice. Gaudy has plenty of litigation files where a trust was in place. He says the cause is usually the same: the wrong person was named as trustee.
His advice to clients is to resist the default. “Pick the right person, pick the person who’s the peacemaker,” he says, noting that a lot of people simply name the oldest child, and the oldest is not always the peacemaker. He also looks for someone financially stable enough that they won’t be tempted to do something foolish with the money.
When no one in the family fits, he increasingly recommends a professional fiduciary: a licensed, paid third party who administers the trust. Over 23 years of practice, and especially in the last five, he’s leaned harder that way wherever conflict exists or is likely. The cost is typically around 1% a year, sometimes 2%. He’d rather see a capable child do it for free, but he notes the courts tend to welcome professional fiduciaries, because they do the job without being swayed by emotion and they have a license to protect.
His warning about perfectionism is the flip side: some families stall on planning entirely because they can’t design a flawless outcome, and they end up in probate instead, which is worse.
Is there a shortcut for smaller estates?
In California, sometimes. Gaudy describes a small-estate probate available for a primary residence valued up to $750,000, which skips the long probate process and the creditors’ period with its required notifications. He recently handled one for an only child whose parent’s home fell under the threshold, and described the whole thing as straightforward.
It isn’t a substitute for planning. He’s clear that the process isn’t perfect, and that creditors can still potentially pursue the children. And the $750,000 figure is California’s; other states set their own small-estate thresholds and procedures.
What this means if you’re planning a 1031 exchange
A 1031 exchange is built around deadlines you control. Probate is a deadline you don’t. If replacement property ends up in a probate estate, it can sit unsellable and unrefinanceable for roughly a year while heirs wait. That matters most for owners who exchanged specifically to simplify life for the next generation. Reviewing how DSTs compare to other 1031 options is a reasonable step alongside, not instead of, the estate documents. For the underlying case for the document itself, see why almost everyone needs a revocable living trust, and if yours was signed years ago, why plans go stale.
Watch: Probate vs. Trust: The Real Cost Is Time, Not Money with Jason Gaudy, Gaudy Law
Educational only. Not legal, tax, or investment advice. Jason Gaudy is licensed in California; rules vary by state. Consult your own advisors.