Proper Estate Planning Reduces Issues of Probate

9/2024

Probate is a legal process that happens after someone dies. While probate can be complex, lengthy, and expensive, an estate planning attorney or probate attorney can help mitigate unwanted risks. They will be able to anticipate what might happen and prevent issues before they arise.

The probate process includes the following:

• Validating the will of the person who died
• Identifying and performing an inventory of the property of the deceased person
• Getting property appraisals
• Paying valid outstanding debts and taxes
• Distributing the decedent’s remaining assets and property according to their will
• Applying state intestacy laws if the deceased person had no will

Avoiding Probate

Estate planning attorneys can structure your estate to minimize or avoid probate. Circumventing probate reduces legal fees for your surviving heirs. It can also give your family a certain level of privacy, as probate is part of the public record. In addition, it can help avoid estate tax, a tax that can significantly reduce the assets you would like your loved ones to inherit.

Some Popular Alternatives to Probate

A Revocable Living Trust

With a revocable living trust, you can transfer money and property to a trust that still allows you to have access to these assets during your lifetime. This probate-avoidance technique can protect property you own, including:

• Bank accounts
• Real estate
• Jewelry
• Art collections and heirlooms
• Vehicles

This trust functions like a will by leaving your property to your loved ones. With a revocable living trust, you can change the terms of your trust and the beneficiaries or revoke it while you are still alive. After your death, the property in the trust is in the control of your named successor trustee. They will then handle the distribution of your assets to inheritors according to the trust’s instructions – without involving probate court.

Life Insurance and Annuity Policies

Death benefits are paid directly to a designated beneficiary upon the death of the insured or annuitant and pass outside probate. And in some states (for example, Texas), death benefits are also generally exempt from creditor claims for either the insured or beneficiary.

Payable-on-Death (POD) or Transfer-on-Death (TOD) Accounts

Payable-on-death (POD) accounts or transfer-on-death (TOD) accounts are available in some states as a simple, no-cost strategy to keep money, even large sums, out of probate.

With POD accounts, you can designate a beneficiary (or beneficiaries) for all types of bank accounts via your financial institution’s POD paperwork process. A TOD transfer applies in the same way to stocks, bonds, and brokerage accounts. These accounts will not be accessible to the beneficiary while you are alive. You can designate beneficiaries on various account types, such as:

• Checking or savings accounts
• Certificates of deposit (CDs)
• Individual Retirement Accounts (IRAs) and 401(k)s
• Inheritable pension and veteran benefits
• Investment accounts

As the account owner, you can withdraw money, close the account, or name a different beneficiary at any time. There may be a short waiting period after the designator’s death before the bank or credit union releases funds to the beneficiaries, but probate is not a requirement.

Depending on the laws in your state, a POD account can also be a:

• Totten trust
• Tentative trust
• Informal trust
• Revocable bank account trust
• ITF, short for “in trust for”

In some cases, you may not be able to name an alternate beneficiary, so staying current with the paperwork that designates your choice is important. No matter what information is in your will, it can’t override a properly established beneficiary designation.

Streamlining the Probate Process

Many states have simplified probate procedures for smaller estates (those estates that are under a certain dollar valuation). Depending on your state’s rules, even if your estate exceeds the definition of a small estate, there may be an avenue available to exclude large chunks of assets to lower your estate’s size and value.

Many states don’t consider the value of certain properties when evaluating an estate. These property types may include real estate, real estate located in another state, and even motor vehicles. Additionally, many states won’t count the value of a property that doesn’t pass through probate. In essence, probate avoidance can pay double dividends after your death.

When trying to minimize an estate’s value to streamline the probate process, some states permit you to subtract any amounts owed on a property you don’t fully own. This can make a significant difference. Knowing your state’s definition of a small estate is crucial when creating probate-avoidance strategies. Staying under a certain threshold can simplify probate.

Work With Your Estate Planning Attorney

Your estate planning attorney will be able to help you identify the best path to protect your estate from the probate process. A sound estate plan can help sidestep many issues that arise from probate. Again, probate can sometimes be a lengthy process and, as a result, may reduce your estate’s value and legacy. Estate planners have the expertise to assist you and your loved ones in avoiding the additional costs of probate, both monetarily and to your family’s well-being.