In this article
- 1 Avoid probate: Definition of the term and what it implies
- 2 Is it good to avoid probate?
- 3 How do you avoid probate?
- 4 Best ways to avoid probate
When a loved one passes away, you usually do not want to deal with any of the legal matters that come with it, due to obvious reasons like grief and pain.
One of such legal affairs is probate, which in simple words addresses the management and distribution of the decedent’s estate.
The thing is, such a process can become very complex quickly due to certain aspects, ending up in great expenses and a long, time-consuming litigation before seeing it concluded. This is why: to avoid probate entirely is something many people think about, as something that you can actually do.
Now, what exactly does it mean to avoid probate? Is it actually a good idea? How can you make it happen? Keep reading to learn better about this legal matter.
Avoid probate: Definition of the term and what it implies
To know exactly what avoiding probate implies, we need to know the definition of the actual term and see what it is that we want to evade.
For starters, probate is the legal process that involves validating, evaluating, registering and ultimately distributing the estate of a deceased, in a fairly fashion to rightful and legal beneficiaries as inheritance. Probate has a court-supervised nature.
In many cases, the term is defined focusing on the acknowledgment and validation of wills and the corresponding decedent’s estate transfer to the heirs.
However, such definition is imprecise as probate applies for inheritance and assets specified in a will or not. Actually, jurisdiction, amount of assets, their value and type as well as ownership status and number of heirs increase the possibility of requiring a probate.
Having said that, why should you avoid probate? It all comes down to three main reasons: time, expenses and privacy. Of course, there are other details involved in a process of this sort and why in general is better to be skipped, but more on that in the following section.
Is it good to avoid probate?
In the majority of times, avoiding a probate process entirely is a good thing and brings plenty of benefits in terms of time, expenses and other aspects.
When inheritance and estate´s assets are transferred to the beneficiaries without a probate, everything can be done quickly and inexpensively, since court is not involved.
Nonetheless, in some cases a probate can be actually recommendable when there is not a will and beneficiaries desire to look for their fair right to obtain a percentage of the assets, in case of doubt. A will, as it must be usually probated, facilitates the process big time.
Among the reasons why avoiding a probate is something smart for you to think about, there are:
Time the process involves
While not all the litigations are the same, probates are court-supervised cases. These take time as they involve numerous hearings, collection of evidence and estate’s assets to payment of debt, inventorying and finally distribution.
All of these steps translate into one thing only: delay and long time for the probate to conclude, which can take months and even years, especially when beneficiaries or third parties contest wills or intestate estate. As the case goes, assets remain locked.
Related costs of probate and estate setting
Probates are expensive, since courts take fees that are taken directly from the estate, and the amount increases if there is a probate lawyer involved.
Depending on the case, amount of assets and status, their ownership, number of heirs and jurisdiction, the total cost of a probate litigation can rise up to 7% of the estate, with an average number of 3% to 5%. These numbers represent a great cut on beneficiaries´ inheritance.
Matters of privacy
As mentioned before, a probate is a court-supervised process. This means every procedure and result of the case, as well as origin and destination of the estate and heirs go on public record.
For many people, keeping financial affairs private is very important and unfortunately probates do not offer this possibility, allowing virtually anyone to find information with a quick search.
How do you avoid probate?
Fortunately, there are many ways in which you can avoid dealing with probate, on behalf of a specialized probate lawyer who can help you choose the best method.
Actually, most of the possibilities that allow to avoid probates are in fact estate planning and preservation tools.
Like this, property owners, testators and people in general can start anticipating passing away in the future, making it easier for beneficiaries to receive their inheritance when gone.
There are other things you can do to avoid a probate in lifetime, which not necessarily involve official estate planning methods but to apply certain financial strategies.
Such tactics can avoid probate or at least simplify the legal procedure by making it quicker and less expensive, with less estate and assets to handle.
Most common methods of getting rid of probate are: carrying out a will, creating a living trust, using taxes, having jointly owned properties or bank accounts, by designating beneficiaries and also reducing estate.
Best ways to avoid probate
Let’s evaluate the best ways of avoiding probate, so you can see which is the ideal fit for your case and personal estate.
It is important to stand out that all of these methods are carried out while the estate owner is alive, translating into a more extensive array of possibilities to ease asset and inheritance distribution.
Avoid probate with a will
To say it up-front, making a will in many cases does not mean you will avoid probate, since testate and intestate estate should undergo the process if it meets certain criteria of jurisdiction, type and amount of assets, as well as ownership.
However, a will is a great tool that helps a lot in the asset organization and distribution of the related estate, leaving the probate court with the validation responsibility only.
With the will beneficiaries are designated and the probate process can be completed faster and inexpensively, decreasing the potential issues of time and money the procedure relates to. A will must be written by hand and while the person has a sound mind so it can take effect.
Avoid probate with a trust
A living trust is one of the most frequent ways to avoid probate. You see, by creating a living you have some sort of deposits where you can bring your assets to, securing from estate taxes, lawsuits, unfair creditors and of course, probate.
With a living trust, the creator of such trust no longer “owns” the assets in it, but a trustee does and therefore, at the moment of death this partial or full estate does not apply for probate, since ownership is no longer with the decedent.
There are two types of trusts, irrevocable and revocable trusts that allow or impede managing and modifying assets in them and related creditors. At the moment of death, estate is transferred to the designated beneficiaries, no probate required.
Avoid probate with bank accounts
Bank accounts are financial products that can skip probate with proper legal advice, by taking advantage of two available benefits; beneficiary designation and jointly owned accounts.
A great and easy way to ease probate and related procedures is by designating a beneficiary with a POD or Playable on dead cause, as an ideal and simple estate planning tactic. In this way, at the moment of death the assets in the accounts pass through directly to the creditor.
With jointly owned accounts that include right of survivorship clauses the same thing. A great example is community property, when married couples have a joint bank account that will not undergo probate, since it will transfer to the remaining living owner automatically.
Beneficiary designation to avoid probate
In fact, many of the ways to avoid probate are based on one strategy: beneficiary designation. You see, while the owner or testator is alive there are great possibilities of easing and even skipping probate, by simply designating property beneficiaries.
As mentioned before, from bank accounts and real estate to trusts, retirement funds and other types of possessions, almost each one of them allows one to designate a creditor in the event of death. By doing so, probate can be avoided.
Other ways of avoiding probate
There are other strategies that can help you skip or at least reduce time-consuming and expensive probate processes.
For instance, checking probate related laws in your jurisdiction can tell you the minimum estate´s assets threshold that will require a probate.
In California, an estate of $150.000 or less would not require estate validation and distribution on behalf of a probate court. Therefore, keeping a small estate or reducing it by entitling relatives and other people to properties held by usufructs is convenient.
How do you avoid probate in Washington D.C.?
Deciding how to avoid probate and the way of actually carrying it out requires professional consultation from an attorney.
At Lopez Law Firm LLC, you will be able to find effective, reliable and professional legal representation in Washington D.C. as experts in the approach of probate cases and focused on providing comprehensive support and best resolution in litigation.