The idea of probate, or probate administration, is something you and your family might have considered when planning for the future. In many cases, we have already dealt with probate court in one way or another when a relative has passed at some other time. Probate is an intimidating concept because not only is it connected to the death of a loved one, but it involves seemingly endless paperwork, administrative issues, attorney involvement, and even court appearances.
While probate administration is often necessary to make sure a person's estate is distributed according to their wishes, most families would prefer to avoid it altogether. The question is how, exactly, to do that?
To get a better idea, it helps to understand what probate administration is.
Probate is the legal process that enables a court-appointed fiduciary (also referred to as an executor or administrator) to handle any of the following, among other tasks:
- Identifying beneficiaries
- Identifying and paying creditors
- Reviewing the estate's assets, including real property
- Distributing the net estate after liabilities are paid
Simply being a power of attorney for certain functions does not qualify a person to handle the estate as an executor, meanwhile. The executor or personal representative is typically appointed through the probate court and then becomes responsible for handling the estate's affairs. The overall purpose is to make sure the decedent's debts are paid off and that assets are distributed to the correct beneficiaries. Overall, a probate case often takes up to a year to complete. This is a confusing and complicated process, especially for an executor that has not handled this type of situation before.
Ways to Avoid Probate Through Advance Planning
There are some legal, common sense ways a person can plan to distribute their assets without involving the probate court.
- Revocable Living Trusts. A revocable living trust allows people to transfer assets into their trust. Once the trust has been funded, the funds are outside the probate process and operate under the guidelines of a trust instead of a will. This allows funds to pass through the trust to your beneficiaries without probate review or court interference. Overall, this is a speedier process than probate and accomplishes many of the same asset management and transfer goals you would have in a typical will.
- Beneficiary Designations. Assets such as bank accounts, 401k and other retirement accounts, investment accounts, and even certain types of personal property can carry beneficiary designations. Typically, this is a spouse or next of kin. Upon the death of the account holder, they will pass to the designated beneficiaries after a death certificate is provided and other required paperwork is complete. This allows the asset to pass to the intended beneficiaries quickly – often within 30 days – and avoid going through probate.
- Own property jointly. One way to keep real estate out of probate is to own your property jointly. For example, if you and your spouse or partner own or are shopping for a home, you want to consider some form of joint ownership. In the event of the death of one of the owners, this allows the home to pass automatically to the other without the need for probate review. Whether you are married or not, if the property is designated a jointly held property it will transfer to the surviving member.
The Attorneys at Darpel Elder Law Can Review Your Estate Plan to Discuss These and Other Strategies for Avoiding Probate
Whether you are in the midst of estate planning or have barely begun to consider it, it is always a good time to discuss these options. Advance planning is key to successful transfers of assets and property to your family – while avoiding the time, expense, and inconvenience of probate court. The Northern Kentucky Elder Law Attorneys at Darpel Elder Law know the strategies that might help you and your family because we have been there for other families before. Do not hesitate to contact Darpel Elder Law to review your full range of options with an experienced estate planning attorney today. Call our office at (859) 341-4100, or visit our website at www.darpelelderlaw.com.