Most everyone has heard the term "avoiding probate", but is that really possible? The most accurate answer is "no, not entirely". You can, however, with good estate planning, keep some property out of probate by using a variety of financial instruments such as gifts, trusts and payable-on-death account designations. For more information on how probate treats estate property, read on
The presence of a will almost always means probate, and for those cases where someone dies without a will, or intestate, probate is a requirement. The amount of property included in the will can be controlled. A good estate lawyer will be able to properly direct certain types of property towards trusts and other means, so at least some property can pass directly to the designated beneficiary and never see probate court.
Not Subject to Probate
There is some property that is not subject to probate, such as those accounts that have been designated as payable-on-death like: stocks and bonds, retirements accounts, checking and savings accounts, brokerage accounts, and life and burial insurance policies.
Possibly Subject to Probate
Normally, personal property like vehicles, boats, recreational vehicles, jewelry, antiques, artwork, furniture, tools and real estate must pass through probate.
Creditor's Claim on Estate
The publishing of the will in a local newspaper constitutes a major function of probate, which is to give any creditors a change to come forward and claim part of the estate. Creditors must come forward within a specified period of time, which varies from state to state, to make a valid claim upon the estate.
Debts of the Deceased
The personal representative, or executor, has the responsibility to pay any outstanding credit card bills, taxes, utilities, loans or any other bills in a timely manner. Be especially mindful of loans that the deceased may have co-signed. The creditor could come forward to sue the estate if the loan defaults.
Consult with the estate attorney to determine which bills need to be paid now, and which ones should wait for the probate process to be complete. Most bills will fall into one of these two categories:
- Administrative: Day-to-day obligations like utilities, property taxes and mortgage payments.
- Final: Credit card bills, vehicle loan payments, federal and state income taxes, and personal loan payments must wait until probate is complete to be paid.
Probate, as you can see, cannot be avoided entirely, and the assistance of a probate attorney is vital to help understand and comply with the sometimes complicated rules about what bills should be paid and when. Additionally, an estate attorney can help simplify the probate process by recommending financial instruments that allow property to pass directly to a beneficiary without the need to wait for the long process of probate to be complete.