Tips & Advice
How can you avoid probate?
You can avoid probate by using a living trust instead of a will. In a living trust, all assets are transferred to a beneficiary upon death, eliminating a will, thus eliminating going through probate.
Why should probate be avoided?
The process of probate can be long, slow, and arduous, so avoiding it can greatly speed up asset distribution to your heir or heirs. Probate can also be costly, so avoiding it can save the estate money. Probate is a public process, which means all documents are public domain. Since everything, including assets, are made public, anyone can look up the estate and see what you inherited, possibly making you vulnerable for thieves or scammers. Believe it or not, probate is a big business for thieves. If privacy is a concern, so if you prefer privacy, avoid probate if possible.
A living trust is a legal document that puts all of your assets into a trust, which allows a third party, or trustee, to hold assets on behalf of a beneficiary--but it is set up while you are still alive. Often monies are distributed to the trust holder on a regularly scheduled basis. Upon death, a living trust is transferred to a designated beneficiary by the trust holder, or their chosen representative, called a successor trustee. Living trusts are ideal to prevent having to go to probate court. Living trusts can, and should, be updated as your circumstances change. If you have a will and trust attorney, there is typically no cost to update a living trust.
Estate planning is the process of deciding how, when, and to whom to distribute a person’s assets upon their death. Estate planning is typically done while a person is still alive and is designed to minimize the confusion of asset distribution, while also minimizing taxes, fees, and court costs. Estate planning often names an executor and sets the guidelines for business ownership and property transfers, asset distribution, even instructions if the estate holder becomes disabled or incapacitated, as well as guardianship for minors. A will is part of estate planning.
A will (or testament) is a legally binding document used to identify heirs and distribute a decedent’s property and assets after death. You can write a will yourself or hire an attorney create one. In addition to asset distribution, wills can also be used to identify an executor and identify guardians for minors. You must have a witness sign for it to be considered a legally binding document. Lots of basic templates and general guidelines on how to write wills are available online.
A probate court supervises the probate process, which can include determining the validity of a will, determining heirs, settling disputes between heirs, distributing assets, and paying estate taxes and debts.
Is it necessary to have a lawyer for probate board?
No, you do not need to have a lawyer to probate (establish the validity of) a will. However, unless you are skilled or educated on the laws and processes, you might be doing the estate a disservice. It is not uncommon for heirs or executors to handle the probate without legal representation. However, if you have a large or complicated estate, unclear will, or little time or desire to probate, it is advised to seek a probate attorney or consultant.
What does it mean to “probate a will”?
Probating a will is a process, supervised by a court or courts, to determine the validity of a will, settle disputes over estate heirs, distribute assets, and pay estate taxes and/or debts.
What does a probate lawyer do?
A probate lawyer is a licensed attorney who advises estate executors and beneficiaries on the laws and processes of settling the final affairs of a decedent. Usually an executor handles the affairs of the estate, while a probate lawyer can guide executors and beneficiaries through the often murky waters that can be especially difficult when grieving the loss of a loved one.
Probate law is the legal process that happens after a person dies. Probate deals with wills and the property of the deceased, and can include challenges to the will, proving the authenticity of the will, and distribution of assets when someone doesn’t leave a will. Probate is the process of determining heirs, paying creditors, and distributing assets.