The Probate Process
When a person passes away, their estate enters the probate process. This begins with the submission of their will to the probate court for review and approval. The will typically names an executor, who is responsible for gathering assets, settling debts, identifying the rightful heirs, and distributing property. If there is no will, the court appoints a personal representative or administrator to manage these duties.
The executor or personal representative must locate all estate assets, notify creditors of the death, allow time for creditors to make claims, resolve any disputes among heirs, settle outstanding debts and taxes, and then distribute the remaining assets according to the will or state law. Additionally, the executor or personal representative must submit required documentation to the probate court.
Why Having a Will is Important
While contemplating our mortality and planning how our possessions should be distributed may be uncomfortable, dying without a will can result in a long, costly, and uncertain process for your loved ones who are already grieving. Relying on assumptions about how property will automatically pass can also lead to unintended consequences, with some people receiving more or less than expected.
Creating a will allows you to take control of who will inherit your assets and ensures your loved ones are provided for according to your wishes. As your estate planning and elder law attorney, Glenn A. Deig can help you craft a legally sound will that meets your state’s requirements, ensuring a smooth transition of your estate to your heirs.
Avoiding Probate
Given that probate can be time-consuming, complicated, and expensive, many people choose to structure their estate planning to avoid it altogether. Several strategies can help achieve this goal:
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Joint Property Ownership with Right of Survivorship
When property is owned jointly with right of survivorship, it automatically transfers to the surviving owner upon death, bypassing probate. There are different types of joint property ownership, each requiring proper documentation. -
Designated Death Beneficiaries
Financial assets such as bank accounts, IRAs, 401(k) accounts, and life insurance policies can have designated beneficiaries who will inherit those assets upon the owner’s death, making them exempt from probate. This includes payable on death (POD) bank accounts, transfer on death (TOD) registrations for stocks, bonds, and vehicles, and more. -
Revocable Living Trusts
A revocable living trust allows you to transfer ownership of property to a trust that you can alter or revoke at any time. This removes the property from your estate, meaning it won’t go through probate. The trust instructions can designate beneficiaries for the property upon your death. -
Gifts
Gifting assets during your lifetime is another way to avoid probate. However, careful planning is needed to minimize potential gift taxes and ensure you can afford to part with assets you may need during your lifetime.
Planning for the Future
Each of these strategies requires careful consideration to ensure they are structured to benefit your estate and heirs. With extensive experience in estate planning law, Glenn A. Deig will guide you in setting up these probate-avoidance strategies and help you create a comprehensive plan for your estate.