Can Probate Be Avoided?

Family sitting on a bed

One of the most common questions we hear is “Can probate be avoided?” It’s an understandable question. Probate Court is, in short, awful. In addition to being complicated and time-consuming, it can also become expensive. Situation pending, even a small estate can spiral out into a finance-consuming nightmare, occasionally costing more to resolve than the decedent had in the first place.

Naturally, you want to avoid this, not only for yourself but for your family as well.

The first, and fastest way to do it, is to set up your more simple accounts to be pay-on-death. This is simply done through your local financial institutions but comes with heavy risks. Individual accounts are quite easily lost in the shuffle of a passing loved one. It's also very easy to accidentally dis-inherit children and grandchildren by this route. While it works as a temporary solution, it's the equivalent of using a bandaid to heal a broken arm.

The best way to handle this situation is to invest in a trust for you and your family. A trust is a separate legal entity, like a business, that holds on to assets for you. Typically, you have full access to it, allowing you to use your resources without any trouble. When the owner of a trust passes, it would also allow money and property to be transferred to loved ones without the trial of probate.

Probate avoidance is not only attainable, but should be considered the bare minimum for most estate planning.

Probate avoidance is not only attainable, but should be considered the bare minimum for most estate planning.

However, it must be put together and properly funded to avoid probate altogether. If even a single asset passes through probate, it can create complications. Though the fees would still be significantly less, it is better to put it together properly, and keep it up to date!

There are other benefits too. If for whatever reason the owners of the trust are incapacitated, this would allow another named person to be able to act on accounts, allowing them an uncomplicated way to ensure house and bill payments are made during medical emergencies. While Power of Attorney documentation may take care of this, it is not uncommon for banks and financial institutions to ignore these documents, preferring to err on the side of caution when allowing individuals to access accounts.

So, CAN probate be avoided? Yes! While some Individuals will be ok using transfer or pay on death stipulations, the best way to responsibly ensure your legacy is to use trust planning. If you would like more information about what planning style is right for you, give us a call at 419-352-7522, or click here to book an appointment with our Client Care Coordinator.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney

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