How To Avoid Probate
If you’ve worked hard all of your life and want to leave your assets to your children or a significant other, it pays to spend a little time planning what will happen when you die. If you pass without a will or trust the state is required to examine your assets to determine who should receive them, and that costs money.
State probate courts may appoint an executor for your estate if you haven’t named one in a will. The executor settles the estate by liquidating assets and paying any remaining bills. Depending on the state where you live the executor may collect as much as 10 percent of the estate as his fee for services, which can be substantial. Fees charged in probate court may include:
While many states have adopted a set of principles called the Unified Probate Code to simplify and reduce costs associated with probate, only a few have limited the amount an attorney may charge for a probate case. These states include:
Each state settles probate issues in its own way. Probation records are kept by probate courts to trace the actions of any court on estates, and these are public records that anyone can access. By making them public records these probation records show if the court is acting appropriately and fairly. It's also easy to get access to probation records through public records searching services such as RecordsFinder.
Why is it Good to Avoid Probate?
By planning ahead it is possible to avoid probate. It can be a costly and lengthy process for your heirs to tackle after your death. If a loved one needs their inheritance to pay medical bills or buy a home, probate can tie up those funds for many months rather than allowing the funds to pass to your heir quickly.
The Best Ways to Avoid Probate
Write a Living Trust – this is a legal tool that removes you from direct ownership of certain assets, such as a home or investment account. A trust names the beneficiaries who will take ownership of the asset upon your death. Establishing a trust often requires hiring a specialized attorney to compile legally binding documents and have them filed appropriately but instructions on creating your own living trust can be found online.
Name Beneficiaries on Your Retirement and Bank Accounts – a beneficiary is the person who takes over the account or receives the benefit upon your death. It’s simple to include a beneficiary on most accounts, allowing that person to skip probate and directly access the account assets upon your death.
Hold Property Jointly – many states have “community property” laws that automatically assign ownership of joint accounts and other property to your spouse or legal partner. The key phrase to look for is “right of survivorship” which means that your named partner is legally entitled to take over the account or receive the benefit upon your death.
States with community property laws include: Nevada, New Mexico, California, Arizona, Wisconsin, Idaho, Texas, Washington, and Louisiana.
Useful Probate Terms to Know
What Assets Can Avoid Probate?
Assets below a certain threshold are exempt from probate, so if you are able to shrink your probate footprint by putting high-value assets into trusts and assigning direct beneficiaries, you may be able to avoid the probate process completely. Each state sets its probate threshold individually, with values ranging from $10,000 in Georgia to $75,000 in Minnesota and Texas. If an estate is small enough, probate may consist of a simple one-form process to complete.
Real estate, vehicles, and property that automatically passes to a joint owner (spouse) are also exempt from probate, so they do not count as part of your assets.
Can You Settle an Estate Without Probate?
Yes, an estate can be settled without probate if the proper legal tools are in place. Be sure to:
- establish beneficiaries on all investment and bank accounts,
- leave a legally-executed will that names beneficiaries, an executor, and outlines the necessary steps for individuals to take possession of your accounts,
- put major assets into a trust, and
- create a legally-binding “pour over” will that moves any remaining assets into the trust at the time of your death.
Is Probate Required if There is a Will?
Probate can be required if all of the assets individual leaves exceed the state’s threshold for probate and are not in a trust. A will alone does not exempt an estate from probate.
What is the Difference Between Probate and Small Estate?
Small estate probate is an expedited, simplified process for handling the assets of a deceased person that are below a certain value. Each state sets its own limit for these transactions: in New York, it’s $200,000, and in Nevada it’s $100,000. Even if the one-form, small estate process is allowed it can still take nearly six months to be processed.
Larger estates that go through probate can take a year or more to settle, depending on many factors, such as:
- the number of heirs and whether they agree on the disbursement of assets;
- whether the will is contested (if an argument can be made that the will is not legal or if the person left multiple wills or if the deceased was under excessive influence of one beneficiary);
- whether the estate is large enough to require IRS clearance for federal taxes;
- the state’s period for alerting creditors and allowing those individuals to weigh in on funds that are due to them before the remaining part of the estate can be distributed to heirs.