Tips for Avoiding Probate

On behalf of The Law Office of Wickersham and Bowers posted in Estate Planning on Wednesday May 12, 2021.

Avoiding probate, the legal process of resolving the estate of a deceased person, and distributing that person’s property to beneficiaries, can save money, accelerate the passing on of assets, and protect a family’s privacy. The two major grounds to avoid probate relate to both the time and to the financial resources typically needed to complete the process. Since probate involves the court system, it requires a variety of time-consuming proceedings and hearings that may take months or sometimes years to complete. Meanwhile, the heirs see no inheritance. Besides the slow administration process are the costs related to settling an estate through probate court. The court reduces part of the estate’s value through probate fees, and if an attorney is involved, even more costs are accrued, thus further cutting into the inheritance.

Another rationale for why you want to avoid probate is to keep one’s financial affairs confidential. Probate proceedings enter public record. This means anyone can get the information on how the estate was allocated. This includes the value and the name of the recipient.

Creating a Living Trust is the Easiest Solution

For these reasons, avoiding probate is often the best course of action. The only realistic way for that to happen is to allocate your assets straight to your loved ones. This can be achieved in several ways, but in most instances, the simplest is by creating what is known as a living trust.

When you create a living trust, the writers or grantors of the trusts fund them by placing assets they select into them. They then keep control of those assets until they pass. The grantors also select a person to be the trustee, distributing the property within the trust, based on the grantor’s directions after that person’s passing. When you have a living trust, the whole process occurs without having to engage probate law or turn to the probate court.

Other Methods You Can Use to Avoid Probate

Besides creating a living trust, there are several other ways that you can avoid probate, such as:

  • Joint ownership of property so that one owner gets full possession after the death of the other;
  • Including beneficiaries on every insurance or retirement account to whom benefits will go after someone passes; and
  • Assigning recipients for TOD or POD accounts. TOD stands for transfer-on-death, while POD stands for pay-on-death. 

A Closing Note to Avoid Probate

Make sure you recognize that there are some states in the US have probate procedures for estates that are below specific value. Some states probate laws are easier, shorter, or simply different than this overview. Therefore, whether you should try to avoid probate is relative to the situation in your area.

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