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Avoiding probate: why and how?

On Behalf of | Mar 28, 2024 | Blog, Estate Planning |

Imagine you’re playing a big game of dodgeball but instead of dodging balls, you are trying to avoid a trip to probate court. In fact, let’s say you are trying to avoid an entire process called probate, which takes place at a special court.

What is probate?

First, let’s explain what probate is so we can get into why people try to avoid it, and why it might be wise, in my cases, to do everything you can to bypass it.

Probate is the legal process that happens in the courts when someone dies. The court validates that person’s will, assuming they had one, and is in charge of distributing the assets that person left behind.

This process also includes paying the debts of the person who died and, at the end, dividing what is left between the beneficiaries.

If the person did not have a will, the court will use the law to divide the assets the person left behind. There are certain laws that state who gets what, depending on how close the relationship is and whether the individual who died was married and had kids, among other factors.

Sidestepping probate

So, why avoid probate? The answer is simple. There is a much better alternative to probate, called estate planning. This allows you to make all these plans but make them privately and have much more control over what happens to your assets.

  • Probate is public, so anyone interested can look up someone’s will and see what they left behind and to whom.
  • Probate can lead to family drama and it often does. Because it is a public process, everyone and anyone interested can look at the will and contest it if they believe they are owed a portion or a larger portion of the estate of the person who died.

How exactly do we avoid this? Is it legal?

Yes, avoiding probate is legal. You can do this by creating an estate plan and using other estate planning tools, like:

  • Living trusts
  • Joint ownership
  • Payable-on-death accounts
  • Gifts

In other words, there are ways for you to ensure that your assets get into the hands of the people you choose way ahead of time. However, you must be proactive and ensure that you contact your estate planning attorney to get the ball rolling.

Remember that talking with an estate planning attorney will help you understand all the options available to you. Whatever you end up choosing is ultimately up to you, but being aware of the different strategies attorneys recommend can help you dodge probate like a true pro.