March 5, 2014

Probate and Estate Planning

Nash&Bean-Curt-colorBy Curt Ford
Nash Nash Bean & Ford

In the absence of a comprehensive estate plan that was developed with probate avoidance in mind, most estates are required to go through the formal probate process when the estate owner dies. There are, however, ways to avoid the need for an estate to pass through formal probate. Planning ahead is the key to probate avoidance.

Probate is the legal procedure required upon the death of an individual in order to ensure that the decedent’s assets are legally transferred to the rightful heir or beneficiary. Probate also serves as a legal mechanism by which creditors of an estate may file a claim after the person’s death. The formal probate process frequently takes a year or more to complete, during which time beneficiaries of the estate may not have access to estate assets. In addition, formal probate can be expensive, providing yet another incentive to avoid probate.

Many states allow small estates to be probated through the use of a small estate affidavit in lieu of formal probate. This allows a beneficiary to fill out the affidavit and claim his or her inheritance. If the estate assets exceed the maximum value for the use of a small estate affidavit though, the estate must go through formal probate if the deceased failed to create a
thorough estate plan aimed at avoiding probate.

The best way to ensure that your beneficiaries do not have to suffer through the probate process, as well as ensure that a significant portion of your estate value is not lost to the costs associated with probate, is to create a comprehensive estate plan that is focused on probate avoidance. Although each estate plan is as unique as the individual who creates the plan, there are some common strategies used to help avoid the need for formal probate, including:

• Using the proper forum of a joint title to ensure that your interest in property passes directly to the co-owner when you die.
• Designating financial and investment accounts as “payable on death” or “transfer on death” which operates as a
transfer mechanism when you die to give your designated beneficiary immediate ownership of the funds help in the account.
• Creating a trust. Assets you transfer into a trust are no longer considered to be owned by you at the time of your death, and therefore, do not need to go through probate.

By working closely with your estate planning attorney, you may be able to create an estate plan that allows your estate to avoid probate altogether when you die, saving your loved ones both time and money.

Nash Nash Bean & Ford are members of the American Academy of Estate Planning Attorneys and the National Academy of Elder Law Attorneys. To receive a copy of our most recent newsletter “Your Estate Matters” or for a free consultation on Estate or Long Term Care Planning, call 800-644-5345, email or visit our website at, where you may also link to our blog and Facebook page.

The firm devotes its practice primarily in the areas of estate, business and tax planning and related areas of the law, as well as elder law and trust administration and probate. We offer guidance and advice to our clients in every area of estate planning.

This column is designed for general information purposes only, and is not intended, nor should be construed or relied upon, as legal advice. Please consult your attorney if specific legal information is desired.

Filed Under: Family, Finance

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