Probate – What is it and how do we avoid it?
Losing someone is always a devastating experience – even when someone has been ill for some time, and their passing is expected, we need time to grieve and process the loss of our loved one. The last thing we want to focus on when we have lost someone is court, probate, inventorying of assets, deadlines, and the stress of serving as a “fiduciary.”
Questions about probate are common at Wakefield Law. The problem is, we often hear from clients after someone has passed away, and it’s too late to take the easy planning steps that we know how to take to mitigate the probate process, or even avoid it entirely.
After someone passes away, their executor or a person close to them can qualify as representative for the estate of the person who has passed away (or, decedent). If a Will exists, who wills serve in this role is clearly denoted. If there is no Will or estate planning documents, it is often a spouse or child of the person who serves as representative. Unfortunately, this is one of the first steps that can lead to conflict. A basic Will can completely avoid the stress and expense of the conflict, but many believe estate planning is only for the wealthy or elderly.
The distribution of assets is another signpost of the probate process after someone passes away. Many people believe that if the wishes of the decedent were known, or there is a Will, there will be no need for probate and the personal property, bank accounts, and other assets of the decedent will be able to pass to the proper family members immediately upon their death. This is not the case. Any asset owned by a decedent must pass through probate, whether or not there is a Will. There are exceptions to that rule, but we’ll get to those later.
What this can mean is individuals who pass away and would never have intended for their loved ones to have to go through a complicated, public, and often expensive process to transfer the assets into their names have just that unfortunate occurrence become reality. For example, if a person passes away and was the main breadwinner of the family, and had all financial accounts in just their name, their surviving spouse will have to go through the probate process to access the accounts. Probate lasts for a minimum of six months and can often last much longer. Also, if lawyers get involved, the estate can lose substantial value, due to attorney’s fees even if the probate process is quite simple.
What can we do?
We’ve heard the problem, now how do we solve it? Here is a word that will solve many problems: BENEFICIARY. When accounts are beneficiaried – they avoid probate. Turning your assets into non-probate beneficiaried assets is the number one way to avoid the probate process and ensure that your loved ones will be taken care of after you’re gone.
The best way to do that is to make a list of all of your assets and work with an attorney and financial planner to make sure every asset is accounted for. Whether you are setting up a beneficiaried account, setting up a basic joint account with right of survivorship, filing a Transfer on Death Deed in the land records, or creating a trust – you can achieve the goal of mitigating the probate process, or avoiding it altogether! Give us a call at Wakefield Law so we can help you! 703-771-9740