Probate proves the validity of the will of a deceased person before the will can be used to distribute the properties or belongings of the person according to the specifications on the will. It is possible for controversy to arise during this process.
Reasons for avoiding the probate process
There are several reasons why different persons plan their estate having it at the back of their minds the need to avoid probate.
Financial involvement: This is a very important reason while most people try to avoid the probate process. The process which could last for a pretty long period of time can require many funds. Spending continues as long as the probate process last. If care is not taken, the beneficiaries and heirs of the deceased might spend half or more than half of the worth of their inheritance
Time factor: The time needed to complete the process of probate could be really frustrating as the heirs and beneficiaries are unable to access their inheritance within this period. Not until the probate process is completed, they can’t be granted access to the inheritance of their loved one. This process could last for several weeks to months and even years for it to be completed.
Privacy: The issue of privacy is also a matter of concern when considering the probate process. For some persons, privacy isn’t a big deal for them while for some others, the privacy and secrecy of their estate matters a lot to them. The issue of privacy comes up due to the fact that a probated will becomes a public document. This will make it accessible by everyone and anyone who wishes to see your will can see it. This means people get to know the value of your estate, your creditors, how much you owe, how you wish for your estate to be distributed among your heirs, who your heirs are, vital information about your estate are open to the public. Many persons find this very uncomfortable. If you are among this lot, there are ways in which you can prevent your estate from going through the process of probate.
Avoiding the probate process
There are different methods one can adapt in other to avoid the process of probate. This could depend on various factors such as the laws of the state where the asset is, the available and suitable option, etc.
Transfer-on-Death Registration for Securities: if you have stocks and bonds, in New York you are allowed to register a TOD. In this case, at your death the beneficiary will be the owner of your brokerage account.
Joint ownership: A property jointly owned with the right of survivorship means if one of the owners dies the property is automatically transferred to the surviving partner. This does not involve probate.
Living trust: It is possible in New York to make a living trust to avoid probate for any property at all; it could be real estate, bank accounts, vehicles, etc.
Payable-on-Death: This is available only for Bank Accounts. You can decide to avoid probate for the money in your account by adding a “payable-on-death” (POD) designation to bank accounts. This could be a savings account. The good thing about this method of avoiding probate in New York is that you are still in total control of your account. You could decide to spend all the money it’s totally up to you. Your POD beneficiary has no claim to the money while you are still alive. At your death, the beneficiary can claim ownership to the money and can access the money directly from the bank without probate court proceedings
Frequently asked questions
Question: Is the probate process costly?
Answer: Yes! This is because for every time a lawyer appears in court, he will be paid
Question: Can avoidance of probate provide shield against creditors?
Answer: yes it can but it also depends on the way you plan your estate.
Question: Are there assets that are not subject to probate?
Answer: Yes such assets are called non probate assets
Planning your estate to avoid probate can be a bit challenging without proper support and guidance. For assistance, hire and consult, our probate attorneys are always available around the clock. You can reach out to us today.