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Probate is a court-supervised process that is required to settle many estates and ensure that creditors and heirs receive what is owed to them. However, probate does take time and can be expensive. Many individuals wonder if the process is required in a situation where one spouse survives the other’s passing. Fortunately, surviving spouses do have options for skipping probate and expediting the settlement of the decedent’s estate. LaFountain & Wollman P.C. is here to explore those options with you.
Probate and Why Clients Try to Avoid It
Whether someone dies having executed a valid last will and testament (known as dying testate) or without one (dying intestate), a probate court must, in most cases, supervise the process of settling the estate. This ensures that the estate pays any taxes or debts that the decedent owed at the time of death and that heirs receive what they are entitled to from the estate. If the person died testate, the will must be validated before distributions to heirs can be made.
However, probate is complicated and time-consuming, and does result in sometimes significant expenses. This is especially the case if the decedent owned complex assets or owed numerous creditors at the time of death. There is the added fact that probate is public, and many heirs (not to mention testators, those who make and execute wills) are uncomfortable with the public knowing what the estate owns.
The specific reasons to avoid probate usually fall into one or more of the following categories:
- Cost: Court filings, attorneys, and executor fees are all part of probate. Lengthier and more complicated probates usually translate to higher costs.
- Time: Probate could take anywhere from a few months to several years. Various factors can lengthen the duration, including complex or unusual assets, assets (like real property) situated in foreign countries, and legal disputes involving heirs and creditors.
- Privacy: Since probate is public, anyone can access the court records pertaining to judicial proceedings. Placing assets in a living trust is one way to avoid this.
Probate May Be Unnecessary With a Surviving Spouse
Clients understandably wish to skip probate for the above reasons, among others. We work to help our clients take advantage of options that help them do so. Depending on how assets are owned and titled, these options may include:
- Jointly owned property: Bank accounts, real property, and other assets can be owned jointly between the spouses with a right of survivorship. Upon death, this property can usually be passed to the surviving spouse without the need for probate.
- Assets with designated beneficiaries: Certain financial assets such as life insurance and retirement accounts allow the holder to name a beneficiary. As long as beneficiary designations are up to date, these assets can also pass without probate.
- Small estates: The probate process is much simpler for estates of smaller value. If the estate has a value of $25,000 or less, excluding the value of one vehicle, the surviving spouse can take care of probate with more speed and less cost.
Helping You Make the Most of Your Estate Plan
The law allows individuals to take certain steps, like skipping probate, which not only save time and expense but help heirs receive their inheritances more quickly. Our legal team can explain the choices you have and then get to work crafting a personalized estate plan. To learn more, schedule your consultation with the estate planning lawyers of LaFountain & Wollman P.C. now.