You do not necessarily need a probate attorney while planning your estate. You may only need one when you need to discuss something deeply rooted in the probate process of which probate attorneys are specialized.
Note that a probate attorney is a legal professional who is specialized in the probate process. They have years of training in probate law, and assist executors and families of a deceased through the probate process.
On the other hand, the process of planning your estate is referred to as estate planning. Although two different things, they are intertwined.
For example, your estate plan will determine how the probate process will go for your family. Since probate is often very complicated and lengthy especially for complex estates, you may consider whether to avoid probate altogether. And you may need to consult a probate attorney to help you understand your options.
Your probate attorney can guide you on how to minimize probate or avoid it so that your surviving family wouldn’t have to go through the stress. To make this happen, they would suggest certain legal strategies depending on the nature of your estate.
Probate is the expertise of a probate attorney, so they are well-equipped to assist you in matters of consideration relating to probate while planning your estate.
An estate planning attorney can give you an all-round estate plan and help you avoid probate
All that being said, you may not always need a probate attorney. An estate planning is a legal professional with years of formal training in estate planning laws, and can offer you all the help you need. Once hired, an estate planning can help you plan towards:
- Efficient asset transfer
- Estate tax minimization
- As well as probate.
Since probate is the end product of your estate plan (when your assets get distributed), estate planning lawyers are also well versed in this area. They can proffer solutions on how to minimize the assets passing through probate, or even avoid it entirely.
Probate issues to consider when estate planning
Must all my assets pass through probate?
You may be at a loss what and what asset will go through probate. It is important to know that there are probate assets and non-probate assets.
Probate assets will typically go through the process whether or not you have a will. Conversely, non-probate assets will pass outside of probate whether or not you have a will.
A probate asset is typically any asset which is owned in your name only. That is, you do not share ownership with another person; neither is there any beneficiary named on the document of ownership. For example, your car, bank account, jewelry, and laptop. The document which ties you to such assets most likely will bear only your name as the owner. Hence, it is your last will that determines where the asset will go. And the probate court has to first determine whether your will is valid through the probate process before allowing the assets to pass down to the beneficiaries in your will.
These assets include:
- Assets held in a trust
- Assets held by joint tenancy with rights of survivorship, such as your home co-owned with your spouse.
- Life insurance proceeds
- Retirement accounts
- Bank accounts with transferrable-on-death clause.
How can I avoid probate when estate planning?
To avoid probate, you can create your estate plan in such a way that all your assets become non-probate assets. Once there is no probatable asset held in your name, there will be no need for probate.
How do you do this?
You can make this possible by holding all your valuable assets in a living trust. Your bank accounts, cars, business, etc.
How do trusts avoid probate?
Trusts avoid probate by the fact that any asset funded into the trust takes up the name of the trust rather than that of the individual. Hence, such an asset will pass directly to the beneficiary named in the trust.
Your real property is another valuable property that typically goes through probate. Funding real estate into a trust is complex (but possible), hence, you should consider holding it with your spouse with rights of survivorship.
In your life insurance, 401k, and ToD accounts, you already designated a beneficiary when creating them. So these assets will pass down to the designated beneficiary immediately you pass away.
Creating living trusts and planning towards probate is always more complex that writing a basic will, so you may want to speak with an attorney to be on the safer side.
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