Avoiding Probate FAQs
What is probate?
Probate is a court-supervised process of distributing and overseeing property after a person dies. The purpose of probate is to determine the wishes of the deceased, pay debts, and to distribute the property according to the decedents wishes. The following occurs during probate:
- Determination of the executor or the appointment of an administrator
- Authentication of the will
- Identification and inventory of the decedents property
- Identification of heirs and beneficiaries
- Payment of debts and taxes
- Distribution of property according to a will or according to state law
Many individuals take into consideration avoiding probate in deciding on an estate planning option.
Is avoiding probate possible through probate exemptions?
Yes, in some states the law provides a way of avoiding probate by allowing an exemption or a simplified probate process for small estates only worth a certain amount. In California, for example, small estates worth less than $100,000 escape the probate process. In a few states, probate is eliminated or a simplified probate process applies for property left to the surviving spouse.
If avoiding probate is not an option, who is responsible for managing the probate process?
An executor named in a will or an administrator appointed by a probate court is responsible for overseeing the probate process. A probate judge appoints an administrator if an executor is unnamed in a will or if the decedent died without a will. Usually, the administrator is a relative or the person inheriting the majority of the decedents estate.
The executor or the administrator performs the following duties:
- Obtains the decedents original will
- If necessary, hires a probate attorney
- Initiates and manages the probate process
- Cancels credit cards
- Notifies government entities of the decedents death
- Manages assets
In many situations, the executor oversees probate, while a probate lawyer performs the bulk of the work.
If probate proceedings are unnecessary, the family of the decedent chooses an informal estate representative to pay debts and to distribute the property. Usually the estate representative is a family member or a close friend of the decedent.
What happens during the probate process?
Because probate involves court costs and attorney fees, avoiding probate will save time and money. The probate process usually takes between six months to a year. The executor of the will or a court-appointed administrator will handle probate, and, if necessary, hire a probate attorney. The executor or the administrator is responsible for filing the appropriate paperwork with the probate court after the decedents death.
During probate, the following occurs: the probate court receives a copy of the decedents will, probate assets are identified and inventoried, contact is made with heirs, beneficiaries, and creditors, and debts and taxes are paid. The last step in the probate process is the distribution of probate assets. In some situations, the executor may have to sell assets, such as real estate and securities, to pay outstanding debts or to make cash bequests specified by the will.
What are my options for avoiding probate?
If property qualifies for a states exemption or a simplified probate process, probate is inapplicable and it is unnecessary to devise methods to avoid probate. If, on the other hand, an estate will be subject to probate, there are some effective methods of avoiding probate.
- Revocable Living Trusts: Creating a living trust is one of the most popular ways of probate avoidance. The grantor, or the living owner, transfers title to property to a trust. Typically, the grantor of the living trust is also the trustee. The trustee manages the property and retains control over the property until their death. The successor trustee then transfers the property to the beneficiaries named in the trust.
- Joint Tenancy and Tenancy by the Entirety: A joint tenancy allows people to share property equally. When one owner dies, the surviving co-owner automatically inherits the property through the right of survivorship. Tenancy by the entirety is similar to a joint tenancy, but it only applies to married couples, and in a few states, to same-sex couples registered with the state. In a tenancy by the entirety, the owners share interest in property. When one owner dies, the surviving owner automatically receives the entire interest in the property.
- Naming a Beneficiary: The owner of an account can designate a person to inherit it upon their death. While the owner retains control while alive, the property transfers to the named beneficiary upon the owners death. In many states, naming a beneficiary is available for pay-on-death bank accounts, transfer-on-death securities, and in a few states, it is possible to create transfer-on-death deeds for real estate and transfer-on-death vehicle registration.