Many people seem to know that they want to avoid probate even if they aren’t sure why. Here are some reasons you might want to avoid probate:
What is probate?
First of all, what is probate? This is a common question and even when people know they want to avoid probate, they’re not sure what it is. The term “probate” is commonly used for two processes: the process by which the probate court determines the validity of a will and the entire process of settling an estate.
What happens during probate? Do I Need a Probate Attorney?
Under the supervision of the court and typically with the assistance of an estate planning attorney (also known as probate attorney, in this situation), your executor (the trusted helper you named in your will), carries out the instructions in your will and under the law. Your executor:
- Gathers, preserves, and protects all of your assets
- Has assets appraised
- Pays any and all last bills (medical, credit card, funeral, and the like)
- Takes care of miscellaneous business (social security, banks, and canceling or transferring subscriptions, leases, and utilities).
- Files tax returns
- Your last personal income
- Your estate’s income tax return
- Your estate’s inheritance and estate tax returns, as needed
- Upon final acceptance of all tax returns, assets can be distributed to beneficiaries per the instructions in your will
Can I avoid probate by not having a will?
Nope. If you die without a will, you guarantee probate. The court will appoint an administrator to settle your estate and the process will be identical once the administrator has been appointed. By the way, this is not a good idea because state law, not you, will dictate who receives an inheritance from you. It may not be who you want.
Why do I want to avoid probate?
While it might appear that all the above mentioned steps need to be completed whether your estate goes through probate or not, there are some important differences.
- Probate guarantees court involvement which means that the court is involved in your private business, finances, and family
- Because the court is involved, the process can be slow.
- During probate, there are public filings with your beneficiaries’ names and how much they received. This is public information and may subject your beneficiaries to embarrassment and predators.
- Probate fees in some states are high, and, in general, probate is more expensive than the alternative.
You can avoid probate. If you have questions about the probate process, contact a qualified estate planning attorney.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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