Strategies to Avoid Probate
Losing a loved one can be emotionally overwhelming — and dealing with the complex legal and financial aspects of their estate can be particularly stressful. If you are beginning the process of planning your estate, you might have many questions about the process and how to avoid probate. Importantly, there are a number of estate planning strategies that can be used in Ohio to help your family avoid going through the costly, time-consuming, and public probate process.
What is Probate?
Probate is the court process of administering a person’s estate after their passing. During the probate process, a judge must determine whether the decedent’s last will and testament is valid and in compliance with state law. Once it has been determined that the will is valid, the court will appoint the executor named in the document (or nominate one if no executor was named) to administer the estate.
The next step in the probate process is sending notices to interested parties regarding the estate administration and notifying creditors. The executor must then take an inventory of the assets and property in the estate, have assets appraised if necessary, settle any debts, and distribute the decedent’s property. After the estate has been administered, the executor can file a petition to close the estate.
Critically, everything that occurs during the probate process becomes part of the public record. This means any information about the contents of the estate, the beneficiaries, and who inherited which assets can be viewed by the public at any time. If you wish to keep your family and financial matters private after your passing, it’s essential to discuss how to avoid probate with an experienced estate planning attorney.
Can a Last Will and Testament Avoid Probate?
Many people mistakenly believe that if they draft a last will and testament, their loved ones will avoid going through the probate process. This is not the case — the will must still be submitted to the probate court and the terms must be approved by the judge. The executor named in the will must then distribute the assets and property in the estate according to the instructions contained in the instrument. Nevertheless, there are several strategies that can be used to avoid probate.
What Strategies Can Be Used to Avoid Probate?
Probate can be a lengthy, expensive, and overwhelming legal process. However, you can minimize the property that needs to go through probate or avoid the process altogether with proper estate planning. This can help ensure your financial affairs remain private and family disputes are reduced, and your loved ones save time and expense that would otherwise be spent on court proceedings. Not only might your family incur attorneys’ fees during the probate process, but court costs, executor fees, accounting fees, and appraisal fees can quickly add up — and impact the amount of inheritance they would receive.
Strategies that may be used to avoid probate can include the following:
- Trusts — There are various types of trusts that can be set up, depending on your objectives. Any property in the trust will pass immediately to the named beneficiaries, according to the terms of the instrument, without requiring probate. Trusts can be used to pass property to any individuals you choose, charities, and even pets.
- Payable on Death (POD) accounts — Many accounts can be designated as “payable on death.” For instance, you can name beneficiaries who will receive the assets in your checking, savings, and money market accounts. By using these designations, the assets will pass directly to the beneficiary without the need for probate.
- Transfer on death (TOD) accounts — Ownership of certain accounts can be transferred upon your death to a beneficiary of your choice by using a transfer on death designation. These designations can be used for brokerage accounts, vehicles, real estate, 401(k)s, and accounts holding securities.
- Joint ownership — If you own assets jointly with another, ownership will automatically transfer to them upon your passing under the right of survivorship. While there may be some paperwork involved, the probate court does not need to oversee such transfers.
Notably, it’s still a good idea to have a last will and testament — even if you are implementing strategies to avoid probate. A will is the foundation of every estate plan and can function in a way that other estate planning instruments cannot. For example, you can name a guardian for any minor children in your will and cancel any debts owed to you. A pour-over will also serve as a backup in the event you forget to include any assets in a trust.
Contact an Experienced Ohio Estate Planning Attorney
Avoiding probate requires planning and it’s important to work with a knowledgeable attorney who can assist you with preparing the necessary documents to meet your objectives. At Middleton Law Offices, Ltd., our estate planning attorneys work closely with clients in Bowling Green and throughout Ohio to create comprehensive estate plans that can help ensure they have peace of mind that their wishes will be carried out. To learn more about our estate planning services and how to avoid probate, contact us online or call (419) 548-0195.