If you or another family member has ever endured probate, you know that this court-supervised process can take a great deal of time and money. For a couple of extreme examples, I am currently involved in two probates that have both been open for over 5 years, and are only just now getting closed. While this length of time is certainly not the norm, complications in the probate process can and do arise, and they generally result in delay in closing and distributing the estate. By planning ahead you can determine if your estate will require probate after your pass way. Then you can work with your attorney to find ways to speed up or avoid probate. Doing so, could be a lifesaver to your family.

When you create an estate plan, you will choose between a Revocable Living Trust or a Last Will and Testament. If your estate is not that large and not too complicated, you may decide a Will is enough. Will-based estates are settled through probate. Although small estates may pass through the process more quickly, even the simplest of estates will take 4 to 6 months to close. Large estates take considerably longer. Probate is used to move property from the name of the decedent into the name of a beneficiary.

If your estate is larger or more complicated, you may prefer a Living Trust. With a Living Trust, you may be able to avoid probate because property is titled in the name of your Trust and not your name. After your pass away, property can easily pass to your loved ones. If you leave any property out of your Trust, it will have to endure probate in order to be titled in the name of your Trust.

Tenants in Common

How you own property affects whether or not probate is necessary. If you own property jointly, it may be able to pass to your spouse or other co-owner outside of probate. If, however, you own property as tenants in common, your share of the property will have to endure probate to pass into the hands of your loved ones. Additionally, planning your estate with joint tenancy assumes that people will die in the order you expect, which is not at all guaranteed. Blended families further complicate planning in this manner. A plan relying on joint tenancy may very well result in the children of one spouse being totally disinherited because the property passed to the surviving spouse immediately upon the parent’s death, and thereafter passed to that spouse’s children.

Lack of Heirs

If you have any financial account or other property that does not have a designated beneficiary or if the named beneficiary is deceased, probate will be used to determine a new heir. If you keep your plan up-to-date, you can help speed up the process of probate by avoiding the need to determine heirs-at-law.

No Valid Will

When you don’t create an estate plan or if your Last Will and Testament is invalid, your estate must pass through probate. Probate for an intestate estate focuses on naming heirs at law and settling the decedent’s affairs according to state law.

Tags: avoiding probate, intestate, Probate, probate court