Avoiding Probate: How an Estate Planning Lawyer Makes It Possible

Probate is the process whereby the courts oversee the distribution of a deceased person's assets. While it is primarily used to prove the validity of a last will and settle debts, probate is typically a long, expensive, tedious, and stressful endeavor for the family and heirs. Because of this, most people would like to avoid probate altogether. An experienced estate planning lawyer can assist individuals and families with evading probate using various planning and legal documents. If you organize your assets before your death, you not only save your loved ones from dealing with complications, but you can also help ensure that your wishes are executed privately and quickly.

Understanding the Downsides of Probate

While probate seems to be a necessary step in settling an estate, many families find it more of a hassle than a valuable option. Once the process has started, it can take months or even years to complete, especially when it involves a contested will or complicated issues. The probate process also makes everything part of the public record, so if a family prefers to keep things private, probate makes it available to anyone. Some family members may have to wait months or even years to receive their assets, which only adds to the tension and stress while family members are working through the grief process.

For these reasons, anyone with an estate plan is trying to avoid probate. A knowledgeable estate planning attorney should understand these obstacles and develop an estate plan that avoids probate so that the lawyer can ensure that an estate windup can occur efficiently, privately, and based on the estate owner's wishes.

Establishing a Revocable Living Trust

A revocable living trust is one of the best legal methods of avoiding probate. This trust allows you to put proper title on your assets to the trust while you are alive. As the trustee, you have access to all of the trust assets but can make changes to the trust and revoke the trust if you wish. Upon your death, the successor trustee you've appointed can distribute your estate according to your directions, outside the probate process. Since the trust is now the legal owner of your property, the court does not become involved.

An estate planning attorney will assist you in creating the trust and placing title on assets in the trust and will advise you through the process so you follow the laws in your state. This process is faster for your heirs, easier to administer your affairs, and your beneficiaries receive their distribution privately outside of the public court system.

Beneficiary Designations and Payable-on-Death Accounts

Another probate-avoidance technique is to use beneficiary designations properly. Upon your death, those assets go directly to your designated beneficiaries and don't have to go through probate. Likewise, accounts and certificates of deposit can often be set up as "Payable on Death" (POD) or "Transfer on Death" (TOD) accounts so they will go directly to your designated beneficiaries. Your estate planning lawyer will review all your accounts to confirm beneficiaries are listed correctly and that they fit with your overall estate.

Failing to complete or mis-complete those forms can create unintended consequences. A lawyer will help ensure these tools are being used properly and also confirm that they are in coordination with the remainder of your estate plan so there is no conflict or confusion.

Joint Ownership of Assets

Joint ownership can be a great way to avoid probate if done correctly. When one of the co-owners dies, ownership happens automatically to the other co-owner or survivor. No court action is necessary. Despite all their benefits, joint ownership should not always be applied to every one of your joint ownership situations. Adding someone to a title the wrong way could create legal, financial, and tax exposure to other issues, especially if the new co-owner has creditors or pending litigation.

An estate and trust lawyer will analyze your particular situation and determine when and how to use joint ownership. They will help you understand the legal issues and will apply the joint ownership factors so your decision does not unwittingly undo your estate plan or unnecessarily expose your assets.

Gifting Assets During Your Lifetime

Transferring property during your life is also a means of avoiding probate. In making gifts to your heirs while you are still living, those items are no longer part of your estate and would not need to go through probate. While this sounds easy enough, there are tax and legal implications. An estate planning lawyer can help you structure gifts to achieve the results you desire—possibly taking advantage of annual gift tax exclusions or setting up a trust—so you achieve the tax reductions you desire and maintain control of your assets as needed.

Lifetime gifting can also be a way to provide help to loved ones now, like making a contribution toward a grandchild’s education or helping assist a child to purchase a home. With good advice on these assets, gifting in a lifetime becomes a good option for reducing your taxable estate and your post-death asset transfers.

Using Small Estate Procedures

Several states allow small estates to have simplified probate or be exempted from probate entirely, usually if the estate qualifies under a maximum value threshold. If your estate is under that amount, your heirs could use a small estate affidavit or another streamlined procedure to receive the estate more rapidly, without going through a formal court process. Whether your estate can use these pathways will depend on your understanding of various state-based laws, limits, and qualification criteria.

An estate planning lawyer can assess the value and structure of your estate to determine if any small estate processes can be utilized to your heirs' advantage. If your estate qualifies for any specific small estate procedures, your lawyer will assist your heirs in completing and filing the necessary paperwork and ensure the requirements of the law are satisfied.

The Finale

Probate avoidance is not only an opportunity to avoid a court process but also to attain peace of mind, privacy, and efficiency. Estate planning attorneys work with you to reclaim the authority to request distributions of your assets. Whether a revocable living trust with appropriate beneficiary designations, joint ownership of your assets, or lifetime gifts—estate planning attorneys will provide effective and end-to-end planning to meet your unique preferences. If you are willing to invest a little time today, it can protect your loved ones from an uncertain future and adverse legal headaches. Be proactive and involve an estate planning attorney to avoid a court process.