Money Protection

How To Avoid Or Deal With Probate

How To Avoid Or Deal With Probate (2)

First we will start off on the top 3 ways to AVOID probate and after we will go into dealing with it if you’re in the middle of it right now…

All of us would like pass on a little something to our children or other loved ones. We save and save to make life a little easier for the people we care about. The last thing anyone wants is to give a large portion of their hard-earned money to the government in the form of probate fees. Nor do we want our loved ones, especially our spouses and children to wait months, even years to receive a penny.

Avoiding the delays and costs of probate is much easier than you think. Here are some basic tips to keep more of your estate in the hands of the people who matter most.

1. Write a Living Trust

The most straightforward way to avoid probate is simply to create a living trust. A living trust is merely an alternative to a Last Will. Unlike a will, which merely distributes your assets upon death, a living trust places your assets and property “in trust” which are then managed by a trustee for the benefit of your beneficiaries. It allows you to avoid probate entirely because the property and assets are already distributed to the trust.

A trust also enables you to avoid the cost of probating a will. One of the main drawbacks of a will is the cost of probating it or passing it through the courts. In probate, there are court fees taken from the gross estate (the amount of the entire estate before the debts are paid out). This fee can often be as high as ten percent of the total estate which often is better used paying trustee fees and burial costs. With a living trust you avoid these court costs all together.

2. Name beneficiaries on your retirement and bank accounts

For some, a Last Will is often a better fit than a trust because it is a more straightforward estate planning document. Yet, just because you have written a will doesn’t mean that all of your assets have to pass through probate. What most people don’t realize is that many of our most valued assets allow us to name beneficiaries. In fact, you may not have realized that the bank account you opened when you got your first job probably enables you to designate a beneficiary that is payable on death.

Thought it may seem simple enough, many people don’t take the time to actually name a beneficiary or beneficiaries for their bank accounts, investments and retirement plans. Payable on death accounts include life insurance policies, pension plans, 401K plans, IRA accounts, stocks and bonds.

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All you need to do to get yourself started is to request and fill out the payable on death forms that your brokerage company or bank can provide. Remember, if you are married, some of these accounts automatically may be partially owned by your spouse. By taking the time to fill out these forms, however, you ensure that the proceeds are immediately dispersed at death without having to pass through probate – sparing a lot of time and a lot of expense.

For many, a Last Will can thus be an excellent alternative to a Living Trust.

3. Joint Tenancy with a Right of Survivorship

Another great way to keep your real estate out of probate is to consider holding your property jointly. If you and a spouse or significant other are thinking about purchasing a first home or even already own you own house, owning jointly allows the property to pass automatically to your significant other without having to go through probate. It doesn’t matter if you are married or not. If the property is designated a jointly held property it is going to go to the surviving member of the couple. Of course you will want to make sure you designate this ownership clearly. You may also want to look into Tenancy by the Entirety and for married couples in Community Property states you will want to investigate designating co-owned property as Community Property with a Right of Survivorship.

Starting Probate Without a Will

When a person dies, someone needs to do the work of closing out their estate. If you want to start probate without a will by serving as the administrator, you typically start by filing a petition in probate court. Here’s a step-by-step look at how to get the process going.

  • Step 1: Review the deceased person’s assets to see if the estate qualifies for a small estate probate exemption. You will need to establish a value to the estate and produce an itemized list of all property needing distribution.
  • Step 2: Determine in which county you’ll file probate proceeding. Generally, it’s the county in the state where the person lived. If they own a home, it may be the county where the home is located.
  • Step 3: Bring a certified copy of the death certificate to the courthouse and request forms to Petition for Letters of Administration. By filing this document, you’re asking the court to act as personal representative of the estate.
  • Step 4: Complete and file the form requesting administration. You should be prepared to provide the names and address’ of all living relatives.
  • Step 5: You’re required to let everyone know you’re petitioning for probate. You’ll need to publish in local newspaper or other forms designed to inform people that a Notice of Petition to Administer Estate. Family members will need notice sent to their homes. This serves as a Notice to all creditors to file their claims against the estate. Creditors usually have four months to file their claims.
  • Step 6: Your petition is granted unless another more suitable representative comes forward.

Article reference:
www.legalzoom.com
www.findlaw.com

About the author

Michele Ungvarsky

Michele graduated from law school in December of 1994. She practiced law in Albuquerque until 2009 when she relocated to the Las Cruces area. Michele has a unique understanding of issues facing families during disability and health crises because her mother and father (who was suffering from advanced Alzheimer’s) moved in with her. The family struggled with the health issues related to the costs and challenges of her father’s Alzheimer’s Dementia. That is why, Michele is committed to helping families “PLAN IT FORWARD” so there are comprehensive plans in place in the case of disability or death.