What is Probate ? How Can You Avoid It ?

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What is Probate ? How Can You Avoid It ?

The last thing anyone wants to think about after a loved one passes away is probate, is the process of distributing the deceased’s property. While probate is not always complex, it is important to understand the process, particularly if you wish to spare your heirs from it. 

What is Probate ?

Probate is the legal process for distributing your property once you die. Your attorney or estate executor generally initiates probate.

During this process, a probate court validates your will, authorized your executor to distribute your estate to your beneficiaries and pays any taxes your estate may owe.

If you have no will, an extra administrative proceeding must be held to decide how your estate will be divided. In this case the court will designate an administrator for your estate, who then follows the probate judge’s order on how to distribute your property.

Is Probate Same in Every State ?

Probate laws differ across the country, therefore it is important to be familiar with your state’s mandates so your final wishes can be administered efficiently.

For example, state laws change on what happens if you die without a will. If you are a resident of Arizona, California, Idaho, Louisiana, Nevada, New Mexico,Texas, Washington or Wisconsin your estate will be established using community property laws. 

Alaska, South Dakota and Tennessee authorize residents to opt in to community property laws.

Community property laws consider that both spouses equally own all property obtained throughout  their marriage. The court will award your assets to your spouse, if you are married and have no children. In other cases, probate courts will decide how your estate will be distributed using state inheritance rules.

In almost all cases, the estate distribution hierarchy starts with your spouse. If you are not married, your assets pass to other family members in a specific order, generally starting with your surviving children and then to other relatives based on their closeness to you.

Why should you avoid Probate ?

Many people want to avoid probate, though probate is generally straightforward.The reasons can change, but there are some common objections about the process :

A. It can be Slow

In some cases, it can take years for a probate court to finalize an estate, especially if it is complicated or involves a contested will.

B. It can be Costly

Costs chages from state to state, but probate generally involves  executor fees, attorney costs and other administrative expenses, such as appraiser’s fees. In some cases, these charges can collect quickly. If the process drags on for a while, the expenses are increased.

C. It is Public

What goes on in probate court does not stay there, as it is a state legal proceeding. All the documents in the probate process goes into the public record.

How can You Avoid Probate ?

All of us would like to pass on a little something to our children or other loved ones.

We save and save to build 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, specially our spouses and children have to wait months, even years to receive a penny.

Avoiding the delays and prices of probate is far easier than you think that. 

The following are some basic tips to keep more of your estate in the hands of the people who matter most. That is you can follow the below steps to avoid probate.

1 . Writing a Living Trust 

The most simple way to avoid probate is simply to create a living trust. A living trust is only an alternative to a last will. Unlike a will, which merely distributes your assets after death, a living trust puts your assets and property ” in trust” which are then managed by a trustee for the advantages of your beneficiaries. It permits you to avoid probate entirely as the property and assets are already distributed to the trust.

A trust also permits you to prevent the cost of probating a will.

One of the main drawbacks of a will is the price of probating it or passing it through the courts. There are court fees taken from the gross estate in probate. This fee can also 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 fees all together.

2. Mention Beneficiaries on Your Retirement and Bank Accounts 

For some, a last will is also a better fit than a trust because it is a more straightforward estate planning document. Because if  you have written a will it doesn’t mean that all of your assets have to pass through probate. What most people don’t realise is that many of our most valued assets allow us to name beneficiaries. 

Actually, you may not have figure out that the bank account you opened after you got your starting job probably enables you to designate a beneficiary that is payable on death.

Though it should appear straightforward, many people do not take the time to actually name a beneficiary or beneficiaries for their bank accounts, investments and retirement plans. 

Payable on death accounts consists of life insurance policies, pension plans, 401K plans, IRA accounts, stocks and bonds.

All you will need to do to get yourself started is to request and fill out the payable on death forms that your brokerage company or bank will give. Remember, if you’re married, a number of these accounts automatically could also be partially owned by your spouse. By taking 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 people a last will can be an outstanding substitute to a living trust.

3. Hold Property Jointly

Holding your property jointly is another way to keep your real estate out of probate. If you and your spouse are thinking about purchasing a first home or even already own your own house, owing jointly allows the property to pass naturally to your significant other without having to go through probate. You are married or not is doesn’t matter. If a property is designated a Jointly held property it is going to go to the surviving member of the couple.

Normally you will need to make sure you designate this ownership openly. You may also need to look into Tenancy by the Entirety and for married couples in Community Property states you will need to inquiry into designating co-owned property as Community Property with a Right of Survivorship. 

Some states still offer an ease probate for what they consider “small estates”. Of course you will need to look into your state’s laws for what is considered a small estate. Generally this designation will indicate that an estate is less than a fixed amount or it can also mean that there is no real property for the court to examine.

4. Reduce Your Estate

To make your estate smaller, you can also give away property during your lifetime.

While doing so can minimize tax burdens and public security, but it also means giving up control over these real estate holdings.

Benefits of Gifting Property

It not only remove property from your estate and keep out of probate but also there are significant emotional benefits to passing your real estate holdings to loved ones or family friends. As these properties may make a significant impact on their living situation, financial portfolio and overall well-being or quality of life.

Drawbacks of Gifting Property

Of course, if you decide to gift valuable property, in addition to giving up control, you may also trigger gift taxes or IRS reporting requirements when gifting stocks and real-estate. Remember that IRS rules commonly apply to gifts of $15,000 per individual or $30,000 per couple.

5. Create a Will

Creating a will that explains how your properties are to be distributed and to whom they will go, doesn’t prevent a property from entering probate. However, it can help to speed up the process significantly and reduce costs as compared to without making a will.

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