As your estate and your family grow, your estate plan should grow with them. Over the course of your life you will probably add additional goals and objectives to your overall plan. One of the most popular additions to the average estate plan is probate avoidance.
The Probate Process
Probate is the legal process typically required after the death of an individual. Probate serves several important purposes, including the identification and eventual distribution of the decedent’s estate assets, notification of creditors and payment of estate debts, and the payment of federal gift and estate taxes due from the estate. Probate also serves to authenticate, or challenge, a Last Will and Testament if one was left by the decedent. If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Personal Representative and oversee the probate of the estate and the intestate succession laws of the state where the decedent resided at the time of death determine how estate assets are distributed.
Common Reasons to Avoid Probate
Avoiding probate is a common estate planning goal for several reasons:
- Probate can be a lengthy process. Probating even a relatively modest estate takes a considerable amount of time. In Oklahoma, creditors have two months from the time notice is published in which to file claims against the estate. Consequently, it takes at least four to five months to probate even a simple estate. Complex estates, or estates that include litigation, can takes years to probate. Probate assets remain out of reach of the intended beneficiaries until the end of probate, often leaving loved ones without access to much needed financial support.
- Probating an estate can be expensive. Probate can be pricey. Everyone involved in the process – lawyers, accountants, appraisers, the Executor – is entitled to a fee for services. There are court costs and other fees and expenses incurred during the probate of an estate. All these costs are paid by the estate, which can significantly diminish the value of the estate ultimately passed down to loved ones.
- Probate makes the terms of your Will public. All documents submitted to probate, including the decedent’s Will, become a public record once filed with the court. That means anyone can learn the terms of a Will and the details of any litigation that occurs during the process.
- A judge must approve everything. The probate judge needs to approve just about everything, including the sale of assets, payment of debts and distribution of assets to beneficiaries. Understandably, many people would prefer not to have a judge interfere with their estate plans.
Yes. Assets held in a trust bypass the probate process altogether. For this reason, many people choose to use a revocable living trust to hold their estate assets and a Pour Over Will to ensure that any recently purchased or forgotten assets make it into the trust.
Yes, if you choose the right type of joint ownership. Assets owned jointly with rights of survivorship allow your interest in the asset to pass automatically and directly to the surviving co-owner(s) without the need to pass through probate.
Converting financial accounts, securities, and other eligible accounts to Payable on Death (POD) or Transfer on Death (TOD) accounts can help. When an account is designated as a POD or TOD account, you name a beneficiary who automatically becomes the account owner upon your death without going through probate. Unlike with joint ownership, the beneficiary of a POD/TOD account has no ownership interest in the account while you are alive.
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