After your passing, your estate will have to undergo probate. The probate process is done for a few reasons. First off, it is carried out to determine the authenticity of your will. Secondly, it is done to administer your estate. In other words, this process if carried out to ensure that your estate is well settled after your demise.
The probate process can be quite challenging for estate executors (the individual charged with ensuring that the estate affairs are settled during probate) and estate beneficiaries. The process can be lengthy, stressful, and quite expensive. Considering this, it makes sense to device a means to avoid the probate process when planning your estate.
But how do you do that? How do you keep your precious estate out of probate? There are three options and we have highlighted them below. But before we delve into these options, let us consider what probate is.
What is Probate?
Probate is defined as a legal process in which a will is reviewed to determine whether it is valid or authentic. Probate also refers to the general administering of a decedent’s will or the estate of a deceased person without a will.
After the owner of an estate dies, the court selects either an executor designated in the will or an administrator (if there exist no will) to administer the process of probate. This involves gathering the assets of a decedent to pay any debt remaining on the individual’s estate, and to share the assets of the estate to the appropriate beneficiaries.
You can set up a living will to bypass probate for any asset you own, such as real estate, bank accounts, vehicles, etc. You need to create a trust document (it is like a will), designating someone to assume the position of trustee after your death (called successor trustee). Then, you must transfer ownership of your property to yourself as the trustee of the trust. As soon as all that is done, the property will be controlled by the terms used to set up the trust. Upon your death, your successor will be able to transfer it to the trust beneficiaries without the usual probate process.
Payable-on-Death Designations for Bank Accounts
Here is another way to avoid probate, and this can be done by including a “payable-on-death (POD) designation to bank accounts like savings accounts or certificates of deposit. You still have control over the money in the account, your payable-on-death designation beneficiary has zero rights to the money, and you can splash all the money if you desire. Upon your death, the beneficiary can claim the funds directly from the bank without the probate process.
If you own a property jointly with another individual, and this ownership includes the “right of survivorship,” then whoever is alive between the two owners automatically owns the property when one dies. Probate is not necessary in this case to transfer the property, although it will involve some paperwork to indicate that title to the property is held solely by the surviving owner.
These forms of joint ownership are available:
Joint tenancy: Property owned in joint tenancy is automatically transferred to the surviving owner when one kicks the bucket. Probate isn’t required to facilitate the process. Joint tenancy is often ideal when couples (married or not) procure real estate, vehicle, bank accounts, or other valuable property together. In New York, each owner, regarding as joint tenant, must own the same share.
Tenancy by the entirety: this type of joint ownership is similar to joint tenancy. However, it is allowed only for married couples. In New York, tenancy by the entirety is allowed just for just real estate.
Need a Probate Lawyer?
The best ways to avoid probate is by embracing the methods mentioned above. But, to do so, you’ll need the help of a professional—a probate lawyer. Probate lawyer will help you set up the documents required to bypass this process. If you need the services of this professional, don’t hesitate to contact our office.