Probate and Avoiding Probate

Books and seminars about avoiding probate abound. But before a conversation about avoiding probate can make any sense, you need to understand what probate is. You may want to read this page before continuing.

Generally speaking, when all property will pass to the surviving spouse, it makes sense to set things up so that everything passes outside the probate estate. Also, when “blended families” are involved, permitting property to pass through probate could disrupt the plan you have made for the distribution of your property.

You can avoid probate by making sure all your property is non-probate property.  You may be able to use beneficiary designations with some property to avoid probate.  You may be able to title property in a way that avoids probate.  Or if you don’t “own” property at our death, that property will not be subject to probate.

If property will pass to multiple beneficiaries, it might make sense to allow property, particularly real estate, pass by Will, unless you are also setting up a Trust. While you can use a transfer on death designation to pass real estate to multiple beneficiaries outside of probate, if the property will be sold, it is easier to have one person in charge – the executor under a Will, or the trustee of the Trust – to make the decisions with respect to selling and conducting the sale. If there is any disagreement among the beneficiaries (or possibly, their spouses) when multiple beneficiaries hold title to the real estate, the sale process may be impeded or blocked.

Another reason to allow property to pass through probate is when there is discord within the family. The court is there to act as a referee in the event of a dispute. While we hope those we leave behind will get along and follow our wishes, it might be reassuring to know that the court will be there if necessary.

Determining when to avoid probate, when it might make sense to allow property to pass through probate, and what the proper tools to achieve your desired result are requires analysis. If you contact us, we would be happy to help you figure out where you want your property to go and how to get it there.

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