With thorough planning, probate can occasionally be avoided. Nevertheless, probate doesn’t have to be a frightening process.
Probate sounds like a complicated and costly process. On the other hand, probate is in fact a very general legal procedure and is how some assets are required to be formally passed from the person that has passed away to their beneficiaries or heirs. Whether probate is required is subject to the kind of property, the way its owned, and what the state statutes are.
What does probate mean?
Probate is a method in which assets are legally transferred. For larger estates, the probate process can be a complex method. Nevertheless, for most individuals, it’s a very simple necessity.
Probate is really just a judge allowing legal consent for assets to be passed on, whether there is a last will or not.
When does probate apply?
A lot of people look upon probate as relating to a will. If a person passes away and leaves a will, then probate is required to carry out the conditions of that will.
Nevertheless, a probate process can also occur if a person passes away without a will and has property that is required to be allocated under the state intestacy statute (the statute of inheritance). Should the decedent being owner of an account that named a beneficiary (like an IRA) but the beneficiary has expired before the account owner, probate law necessitates that account to go through the court so the funds can be transferred to the person legally allowed to them under state law.
Can’t you bypass probate?
Many individuals don’t want a will probated. There’s no prerequisite that a property or will go undergo probate, but if the decedent owned property that is not planned specifically to bypass probate, there is no way for the beneficiaries to gain ownership legally without it. There are some exemptions to this. The law in Florida allows a family to own property in their decedent’s name if they maintain paying its taxes and don’t sell it.
What is a small estate probate process?
A lot of states recognize that a total probate process can be costly and time-consuming. For this reason, smaller estates are typically eligible for a streamlined process that typically doesn’t require assistance of a probate lawyer.
In West Virginia, for instance, when the decedent’s estate is under $100K, a small estate probate process is utilized. These kinds of processes make probate court available to most families and recommends people to devise wills.
How to avoid probate
It is feasible to avoid probate entirely with thorough planning. This is desirable for some people since doing so not only decreases legal fees, but it can also bypass the estate tax, which can take a considerable amount of a very affluent estate. Bypassing probate can also safeguard privacy because some of the records might not be publicly available.
A very favorable way for avoiding probate is utilizing a living trust that is revocable. Assets are put in the trust, but they could be utilized by the creator of the trust throughout their lifetime. Following passing, assets in the trust are transferred to the beneficiaries of the trust just by action of the trust documentation. Probate is not required.
A life insurance policy is going to transfer property outside of probate. Whomever you name as beneficiary on your policy are going to receive the death benefit instantly with no probate process.
Several retirement accounts can transfer outside of probate. The account owner appoints a beneficiary, and that individual then is going to receive the balance of the account following the owner’s passing. POD accounts operate the same way.
Real estate owned as joint tenants by the entirety transfers outside of probate also. This kind of property is owned by two individuals. When the first owner expires, the second one systematically owns the property.
A lot of families are going to have some contact with a probate court whether a will was devised or not, but in a lot of cases, the process is smooth and affordable.
Source:
- Do all wills need to go through probate? LegalZoom. (n.d.). Retrieved February 21, 2023, from https://www.legalzoom.com/articles/do-all-wills-need-to-go-through-probate
