The probate process uses a deceased individual’s assets. The court then distributes the same. This process distributes assets solely in the name of the deceased person. State laws govern probate.
Is your estate plan in place?
Have you heard the term “probate?”
What is Probate?
Avoiding the Probate Process
One of the great reasons to assemble an estate plan is in the interest of avoiding probate. One way to avoid the probate process is to ensure that no assets remain titled in the decedent’s name, or to provide for an automatic transfer of title, at death. Ways to accomplish this include joint tenancy with rights of survivorship, transfer-on-death (TOD) or payable-on-death (POD) beneficiaries or use of a trust.
Probate Process
Your estate attorney can set up joint ownership to create and transfer property. However, this solution comes with its own set of concerns. TOD and POD accounts efficiently and immediately transfer funds to the named recipient after the account owner’s death, outside of probate. Your estate planning attorney should easily set this up. In this case, however, the account is transferred to the beneficiary outright, without any creditor protection.
Trust in the Probate Process
Another popular and efficient way to avoid probate is with a trust. If you place your assets in a trust, the trust (not you) owns them, although you can control these assets and benefit from them as if they belonged to you. Accordingly, the assets do not go through probate because only property which is owned by the decedent goes through this process.
Note: If your estate planning consists of a will, this document will go through the probate process. However, by using a will, you can determine who will receive your assets – as opposed to letting the court decide for you.
Benefits of Probate
Numerous estate planning tools circumvent probate. Nevertheless, probate is not always a negative. Probate court ensures that your intentions and wishes (as stared in your will) are carried out after you die. Additionally, the probate process guarantees presented debts and outstanding taxes on your estate are discharged. This, in turn, results in finality to the affairs of the deceased – and surviving family members. However, if the deceased had outstanding debt, the probate process gives creditors a brief window to file a claim against the estate. This could result in more debt forgiveness if the estate could end up insolvent.
Downsides to the Probate Process
Due to the filing and inventory fees imposed by the probate courts, such fees eat away at the estate. So, cost is a concern. Also, the probate process is time consuming. For example, the probate must be open for a minimum amount of time (in many states, this is four months). This allows creditors time to file claims against the estate.
Most uncomplicated probate estates take a minimum of one year to administer. Additionally, lack of privacy can be a concern for some families. The contents of your will, and any other documents filed with the court, become a matter of public record. Any nosey family member could access documents through the probate process. Lastly, the probate process wrests control away from the deceased and the family. This is because, without a will, the probate process puts the disbursement of a deceased’s assets in the hands of the court and at the mercy of local intestacy law.
Get Advice
Do you have questions about the probate process and intestacy laws in your state? Feel free to give us a call and schedule an appointment (909) 608-7671. Avoid probate to take care of your loved ones.
About Skvarna Law Firm in Upland and Glendora, California
A skilled attorney can assist with your estate plan. Contact us today to learn about your options (909) 608-7671. We operate offices in Glendora and Upland, California. We provide legal services for individuals living in San Bernardino, Los Angeles, Orange and Riverside Counties. This includes the cities of Upland, Ontario, Rancho Cucamonga, Fontana, Colton, Rialto, Chino, Chino Hills, Glendora, Claremont, Montclair, Pomona, La Verne, San Dimas, Azusa, Covina, West Covina, Diamond Bar, Walnut, La Puente, Corona, Norco & Mira Loma. Visit SkvarnaLaw.com to learn more.
