What is Probate?
Probate is a legal proceeding done after someone dies where the deceased person’s property is distributed amongst their heirs. The heirs and/or beneficiaries of the estate are either designated in a will, or if no will was left, by Intestacy Law. Whichever state the deceased person maintained legal residency at the time of death is the state whose laws will govern the probate proceedings. If the deceased owned property in other states at the time of death, the state in which the property sits controls the probate of that property. Furthermore, the Superior Court in the county where the individual resided upon death handles the probate proceeding. Just as any other proceeding that goes to court, because probate is done byway of court, it is also a matter of public record. This is an important element to consider when setting up a proper estate plan, because it is one reason many people choose to plan to avoid probate.
The process of probating an estate involves appointing a personal representative who has the duty of distributing the estate. This is only done after the personal representative ensures the debts, taxes and expenses related to the administration of the estate are paid out of the deceased person’s estate.
The entire process of probating an estate can take anywhere from six to nine months to conclude. Additionally, the fees for a probate can be anywhere from $3,000 – $5,000 for a medium size estate. This ends up being a good chunk of change that the beneficiaries never see due to the need for probate.
Can I Avoid Probate?
As you may have already guessed, the need to probate is determined by the type of property the deceased person had at the time of death and how that property was held, (e.g. what type of title is on the property). Before asking if you can avoid probate, first ask if you need probate. For example, if a property is held by “joint tenancy with right of survivorship” there is no need for probate because the property automatically transfers to the other joint tenant upon death. But the estate will need to be probated when the second joint tenant is deceased unless he or she sets up an estate plan or gets another joint tenant on the property. So even the survivorship title ends up being limiting without proper planning.
An estate must be probated upon death if there is:
- Real property titled in the deceased person’s name with a value over $75,000,
- Personal property of the deceased valued over $50,000, or
- Unpaid wages of the deceased of at least $5,000.
Having a will is not necessarily going to help you avoid probate. It certainly can but it depends on the individual circumstances and a few other moving parts. One of the most effective ways to avoid probate is byway of a revocable living trust. A trust has a longer life than a will, as a will “speaks upon death.” A trust is able to hold property much longer than a will and make distribution of assets clean, and certainly less costly.
Proper estate planning saves time and money in the long run and it helps the family move forward upon the death of a loved one.
I urge you to speak with an estate planning attorney about your individual plan and prepare things ahead of time. Remember estate planning is not for the wealthy, it is for every day people like you and me. It really will mean the difference of at least half a year and thousands of dollars spent.
