Probate - Avoiding It!
Our attorneys and staff want to do everything that they can to help families through all of the legal aspects of losing a loved one – without adding more stress and heartache to an already very difficult time. When an estate goes through probate, it can be an expensive, time consuming, and burdensome process to the surviving family members. That is why we do everything that we can to avoid probate and that difficult, expensive process.
WHAT IS PROBATE? – Probate is the legal process of getting a deceased person’s assets out of their name. These assets will be transferred, according to the wishes expressed in the deceased person’s will, or if there is no will, then by the state’s rules, which will, generally and in most cases, distribute assets to the closest living relatives first and go down a list according to the law. Whether there is a will or not, the distribution of these assets is done by the court; it requires the payment of filing fees; and in the end, it all depends on a judge’s schedule. These things can make the process very time consuming and expensive. Going through probate can easily become a substantial burden on the family of the deceased. That’s why we want to help you avoid probate whenever possible.
HOW CAN I AVOID PROBATE? – Probate can be avoided by making sure that assets are not in your name at your death or that they transfer automatically upon your death. Please understand that a Last Will and Testament will NOT protect you from going through probate. In fact, a will DIRECTS you to probate. Your Last Will & Testament will simply tell the judge and Executor how you want your assets to be divided.
There are several ways that you can avoid probate. The most popular method of avoiding probate is by creating a trust. A trust is a legal entity that can hold property. All allowed property is transferred into the trust so that it is not owned by the decedent at the time of death. Since the decedent doesn’t own any property, it does not have to go through probate. Also, if the estate is large enough to be taxed, a trust can save hundreds of thousands of dollars in taxes – if done correctly.
However, trusts are not the “end all” they are sometimes touted to be. If they are needed, they are beautiful. However, they are more expensive at the beginning and they must be carefully maintained through the years. If you do not have a taxable estate and you have a simple distribution plan, you can avoid probate in other ways that are much cheaper (and involve very little attorney participation).
Payable on death (or sometimes called Transfer on Death) designations of bank accounts is a great way to make sure assets transfer to someone else at death. Life Estate Deeds and Transfer on Death Deeds are useful tools when it comes to avoiding probate. However, they need to be used with an eye on Medicaid, Veterans’ benefits and special needs issues. They should only be used with proper advice from an attorney that has a good understanding of all aspects of estate planning and probate.