Probate is a complex process that needs to be avoided. This process which is usually done to determine the authenticity of a will, or distribute the assets of a deceased that died without a will, is time-consuming and stressful.
Probate can delay the transfer of ones assets to the designated beneficiaries. For this reason and a few others, estate owners often try as much as possible to create an estate plan that avoids this process.
If you hire a competent estate planning attorney he or she will ensure that you create an estate plan that avoids probate. Of course, probate can be avoided in a few ways. You can avoid this process by either setting up a trust, via joint ownership of property, and a few other ways.
When it comes to avoiding probate there are a few misconception, just as the probate process itself is entangled in a few misconceptions of its own. One of the most common misconception as far as avoid probate is concerned is that creating a will is enough to avoid the process. How true is that?
We will find out pretty soon.
What is a will?
A will, which is no doubt one of the most common and important elements of an estate plan, is basically a legal document that outlines how an individual wants his or her assets to be distributed.
Aside from wishes regarding ones assets, a will also contains information such as the name of the estate executor (an individual designated by the testator to handle probate and ensure that his wishes are fulfilled). A will also contains the names of the estate beneficiary, including the assets given to each of the beneficiaries.
What is probate?
Simply put, probate is the method by which a deceased’s will is processed. This normally involves lawyers and a court proceeding where the contents in the will are read out loud and the appropriate assets are distributed to the designated beneficiaries. The probate process can be lengthy, depending on how large it is.
Most wills designate an executor who handles or supervises the probate process. This individual usually has 30 days from the date of the will owner’s death to file the document with the local prpobate coirt.
If the will owner died without creating a will or failed to clearly choose an estate executor. The probate court will step in and appoint an administrator to supervise the probate process. This role is usually filled up by the next of kin. But, a named executor or selected administrator can always reject the role. In these case, the court will appoint someone else. It is the job of the state executor to prove to the court that the will is valid.
Does a will keep an estate from going through probate?
A will cannot stop your estate from going through probate. Regardless of if you have a will or not, your estate will still undergo probate. The function of the probate process is to determine the validity of a will. That said, how will creating a will stop the probate process?
As I mentioned earlier, a will is just a legal document that holds your wishes regarding your assets. It cannot function as mechanism or element used for avoiding probate that is the job of a trust and other legal documents.
If you are keen on creating an estate plan that avoid probate, don’t hesitate to contact an estate planning attorney.
Need an estate planning attorney?
While there are a few ways to avoid probate, one of the best of them all is by setting up an irrevocable trust. Setting up a trust for your estate may be difficult, especially if you aren’t an estate planning attorney or a probate attorney.
That said, if you wish to set up a trust to protect your estate from probate process, don’t hesitate to contact a professional like us. We boast of some of the best estate planning attorneys and they can help you draft an estate plan that avoid the stressful probate process.