Can I Avoid Going Into Probate?
While there are plenty of important reasons for the probate process to exist, it comes at a challenging time. Unsurprisingly, it often makes sense to attempt to avoid probate altogether. There are various options available for those that wish to protect their estate, avoid probate and otherwise ensure that their wishes respectful.
The probate process is the default option for handling an estate following someone's death. An individual that never completed a will will have their assets divided to heirs according to Texas heirship laws.
If an individual has a valid will, that will has to be admitted to probate, the Executor receives the power to administer the estate by a document called letters testamentary and then carries out the wishes in the will. Probate can be avoided with a revocable trust that holds all of an individuals assets, or with beneficiary designations for all of a persons assets. In both scenarios, probate is not necessary because no assets must be changed from the decedents name to the names of beneficiaries.
If you would like to find out more about avoiding probate or want to ensure your succession plan is perfect, contact our team today at (512) 374-4922.
What Is the Probate Process?
In its most simple form, the probate process is designed to ensure that a court legally recognizes an individual's death before proceeding directly to assessing assets and property held upon death, dealing with outstanding debts, taxes and distributing the remaining assets to beneficiaries.
The probate process varies depending on the estate planning steps taken by the deceased. Where there is a will in place, the legal document enters probate, and it becomes the executor's responsibility to carry out the instructions contained therein.
The basic nature of probate does not seemingly make it appear to be something to avoid at all costs. Most people would rather spend time grieving than attending probate court, but it is not inherently complex. However, much can happen between the initial filing and the finalization of probate.
One slight concern for some individuals, especially those with relatively valuable property in their will, is that probate is a matter of public record. As such, any interested party can look into the nature and value of assets and their recipients. If a deceased and their family members can avoid probate, they will also avoid these concerns.
Perhaps the most significant concern involves challenges to the estate. Even when a will or other document is seemingly binding, the probate process gives anyone the opportunity to challenge the distribution of assets, chosen beneficiaries, or any other aspect.
Whether or not these challenges have any merit, they take time to resolve - time that most beneficiaries would rather spend outside the courtroom and in possession of their share of the estate. More time in court typically means more probate costs and court fees too, so if there is a chance that the case may drag on, it might make sense to make avoiding it altogether an integral part of your final wishes.
If your goal is to avoid probate, as briefly mentioned, there are a few ways to do it. These are set forth below.
Create a Living Trust
Trusts rank among the best ways to avoid probate and they are a popular upgrade over traditional wills.
One of the biggest benefits of a trust is that you could conceivably transfer virtually all your assets into one. A living trust can contain just about any kind of asset, from real estate and property to an investment account or multiple bank accounts. While there are further options to explore, a living trust can be an attractive proposition as it is effectively a separate legal entity.
If even a relatively small estate has been transferred into a trust, those assets officially become trust property. As such, the probate process does not apply to that property as it no longer belongs to the deceased - it is legally owned by the trust.
Payable on Death and Transfer on Death Assets
Some assets are designed in such a way that ownership automatically transfers when the owner passes away. Such arrangements are relatively common in retirement accounts and life insurance policies, but they can sometimes apply to any bank account too. Known as a POD account, the owner retains control while they are alive, but the listed beneficiary can claim assets in the account when they pass away, as the funds are literally payable on death.
Speak to an Attorney About Avoiding Probate Today
The best way to avoid probate is to plan ahead. This is due to the fact that there are so many ways to avoid probate that there is no time like the present to consult an experienced attorney about your options. Even small estates can benefit from such planning and your beneficiaries will thank you for ensuring they do not have to go through probate or that probate is as smooth as possible, at a time when they would rather be grieving.
If you are ready to work on your plans for the future, and to ensure that your designated beneficiaries receive what is due to them, contact us today at (512) 374-4922.