Probate…..let’s talk about it

Probate…..let’s talk about it

For many people, probate court seems like something to be avoided at all costs. It brings to mind images of an estate bogged down in the legal system while heirs wait for assets to be released.

However, probate court doesn’t have to be the nightmare experience you imagine when you have the support of a probate lawyer. Of course, if you do want to avoid probate, that can be done, too. Contact a probate lawyer to get the help you need.

Which estates go to Probate? 

The short answer is all estates go to probate. It doesn’t matter whether you have a will or skipped that important step in end of life planning, your heirs will need to go to court before your estate assets are disbursed.

The difference is that with a will, an executor you name will distribute assets according to your wishes.  You can easily find a probate lawyer to assist with this.  Without an executor, the court will designate an administrator who will divide your assets according to provisions of the law. If you have a will, that saves a huge amount of time.

Options for avoiding probate

 For those who want to avoid probate, there are several options to bypass the system. The first is to make heirs co-owners on bank accounts and other assets. In theory, this sounds good because heirs can simply remove the name of the deceased and then split the account balance without going to court. In reality, these setups can result in one heir legally running off with all the money. That’s because all co-owners have full access to the assets.

Transfer on death provisions on deeds and accounts are another way people can avoid probate. The main risk with these provisions is someone dying out of order – such as a child preceding a parent. What’s more, if an asset is transferred to a minor, probate may have to be opened to administer it anyway.

Rather than trying one of these options, the easiest way to avoid probate is to set up a revocable trust and transfer assets. Upon death, the trust can then disburse assets to heirs without having to go to probate court first.  Consult with a probate lawyer to see the best available options for you.

Family litigation is the real problem.  

You should be less concerned about avoiding probate and more concerned about the possibility of family members taking each other to court. That’s a lot of people’s worst nightmare that people are going to fight.  If that occurs, contact a probate attorney to get the help you need.

In some cases, there may be good reason. If the nurse comes in for the last three months and suddenly gets everything.  But in most cases, family litigation is the result of long-standing feuds. They are fighting over disputes they had as kids.

Depending on the state, these court battles may be headed off by adding a no-contest clause to the will. This language stipulates that anyone who legally challenges the will loses their bequest. Not all jurisdictions recognize the validity of these clauses, and in these areas, a mediation clause may be a good alternative.

Possibly the best way to avoid family fighting is to provide as much of an explanation as possible. This can be done in the will itself, or side letters to specific people can be attached to outline your reasons for divvying assets as you did. Probate attorneys can help tremendously with this.

Nobody want to think about their estate languishing in court after their death or family members fighting for a bigger share of the pie. A will or trust can help you heirs avoid a lengthy probate process, and some proactive communication from you may prevent ugly family litigation from undoing all your hard work.  If all this sound like a little overwhelming, consult a probate attorney today.

It’s important to remember that certain laws vary by state and some of these tips might not be applicable in your region. Be sure to find a probate attorney in your area to advise you on the entire process. 

Disclaimer: While every effort has been made to ensure the accuracy of this article, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

For all questions regarding your individual situation, call an experienced probate attorney in our directory today –

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