Estate Planning: Escaping the Probate Trap

Making a Will is one of the wisest steps any person can take. It brings order, protects loved ones, and ensures your property passes according to your wishes. Yet, a Will is only one part of a complete estate plan. After death, every Will must go through probate—a court process that confirms its validity before executors can act. Probate ensures transparency, but it can also delay transfers and attract a 3% estate duty on the value of assets. Escaping the Probate Trap

Fortunately, Ghanaian law allows you to take additional steps that reduce this burden. By planning ahead, you can protect your estate, preserve family privacy, and help your beneficiaries receive their inheritance faster. This article explains how a Last Will and Testament can work hand in hand with other estate planning tools to help you escape the probate trap, lawfully and securely.

What Is the Probate Trap?

Probate is the legal process that gives effect to a person’s Will after death. The High Court must confirm the Will’s validity and grant probate before the named executors can manage or distribute the estate. This protects beneficiaries and creditors by ensuring only a lawful and valid Will is used.

However, probate can take time. Executors must locate assets, file documents, and wait for verification from the court. Families often face months of delay before they can access money or transfer property. In some cases, disagreements among relatives can make the process longer and more expensive. Litigation may also arise making it all worse and even more convoluted.

Probate also attracts an estate duty of up to 3% percent on the total value of the deceased’s property in Ghana. This cost can be quite significant for beneficiaries who do not yet have access to the funds in the estate. While the process serves a vital public purpose, it can feel burdensome when all you want is a smooth and private transition of family property.

For this reason, some have opted to combine a valid Will with other lawful estate planning tools. The goal is not to avoid the law of probate, but to structure ownership so that certain asset classes can pass automatically to beneficiaries without the delay and burden of probate.

Learn More about Probate Process here.

Using Trusts and Lifetime Transfers to Simplify Inheritance

A Trust is a legal arrangement that allows one person, called a trustee, to hold and manage property for others. When created during your lifetime, it is known as a Living Trust. You may act as your own trustee while you are alive and later appoint a trusted family member or professional to continue after your death.

A Living Trust helps the family bypass probate because the property already belongs to the Trust. The trustee can take over management immediately, without waiting for a court order. This saves time, preserves privacy, and may reduce the overall cost of administration.

Many families in Ghana now combine a Family Living Trust with a traditional Will. The Will covers any property that was not transferred into the Trust before death. In this way, your estate plan remains complete and lawful. The Will still plays its role, while the Trust ensures a smoother handover of key assets.

Lifetime transfers can also be used to prepare for the future. You may place company shares, real estate, or investments under a holding company owned by your Trust. This structure protects assets, simplifies management, and supports clear succession across generations.

Together, these lawful tools form a secure strategy for preserving family wealth and ensuring that beneficiaries receive their inheritance quickly and peacefully.

The “Double Will” and Its Role in Escaping the Probate Trap

A Double Will, also called Reciprocal Wills, is a matched set of Wills made by two people, usually a married couple. Each spouse makes a Will that complements the other. The Wills ensure that both documents work together to protect the family estate.

Under this plan, most property may already sit in a Family Living Trust. However, a Will remains useful for property not yet transferred to the Trust. Lawyers sometimes call this a “pour-over” arrangement because the Will transfers remaining property into the Trust after death.

In Ghana, the law still requires such property to pass through probate before the transfer occurs. The process, though unavoidable for those items, becomes simpler and better organised. The Trust then receives the property and continues under the rules you created.

The Double Will also allows couples to choose guardians for minor children and make clear personal gifts or instructions. When written carefully, both Wills support one another and ensure that no part of the estate is left out.

By coordinating the Double Will with a Living Trust, families can enjoy both the legal certainty of a Will and the efficiency of a Trust. The result is a balanced, lawful, and practical plan that respects Ghanaian law while protecting family peace.

Learn more about the validity of Wills here.

Other Essential Tools for a Complete Estate Plan

A sound estate plan goes beyond Wills and Trusts. It also prepares for life events that may affect decision-making before death. Two important documents help achieve this, the Power of Attorney for Finances and the Healthcare Power of Attorney, sometimes called a Living Will.

A Power of Attorney for Finances authorises a trusted person to manage your property and financial affairs if you become unable to do so. This can cover paying bills, managing bank accounts, or handling company matters in Ghana while you are abroad or unwell. It prevents gaps in management and avoids costly disruptions.

A Healthcare Power of Attorney allows you to appoint someone to make medical decisions for you if you cannot communicate your wishes. Ghana does not yet have a detailed law on this, but a well-drafted document still serves as a clear guide for doctors and family members. It expresses your values and ensures treatment choices reflect your personal beliefs.

Your lawyer can also prepare guidance letters for executors, trustees, and agents. These letters explain how to act, what documents to use, and where to find important records. Together, these tools give your family the confidence and authority to act when needed.

Estate planning is not only about what happens after death. It also secures your wellbeing during life and protects your loved ones from confusion or conflict.

Regular Reviews Keep Your Plan Effective

Estate plans remain strong when you review them often. Life changes, and your documents should reflect those changes. New children, property, or business interests may require updated instructions. A simple review every two or three years helps you correct gaps early. Let your estate lawyer recommend how often a review should be done.  It also helps you confirm that your Will, trusts, and beneficiary choices still match your goals.

Regular reviews reduce surprises for your family. They prevent confusion that may arise from outdated clauses or missing assets. Reviews also give you room to adjust your plan to new laws or tax requirements. You protect your beneficiaries better when you treat estate planning as an ongoing process. Escaping the Probate Trap

Legal Caveat and Professional Insight

Ghana’s law offers many helpful estate tools, but each tool has limits. Ghana has no formal “pour-over” rule, so assets do not move automatically into a trust when you die. You must place property into the trust during your lifetime or through clear instructions in your Will.

Ghana’s trust regime is flexible and effective when used well. You may create private family trusts to hold land, investments, or business assets. These trusts help you manage property smoothly and reduce delays. However, the trust must meet the formal requirements under Ghanaian law, including clear beneficial interests and a capable trustee. Note that the Trustee Act, 1962 (Act 106) applies to some statutory trusts and trustee duties. Family living trusts like those discussed here follow common law trust principles. Courts use equitable principles and case law to resolve disputes and interpret trust terms.

Healthcare powers of attorney face limited recognition, but they still guide families during emergencies. Banks and registries may also request extra documents. Our firm provides legal opinions to confirm your authority and ensure compliance. This protects your plan and keeps your arrangements practical.

Summary and Conclusion

Escaping the Probate Trap begins with clear, lawful planning. Key steps include establishing a Family Living Trust, and preparing coordinated Wills. Add durable Powers of Attorney to cover financial and health decisions. Transfer major assets into the Trust while alive. The Trust then holds legal title and lets trustees act without court orders. Use a Double Will as a safety net for assets not yet in the Trust. Regular reviews keep the plan current with life changes and law reforms. These steps aim to reduce delays, costs, and public exposure of family affairs. All measures respect Ghanaian law and accept equitable principles. Good planning and sensible asset protection.