There are good reasons for wanting to avoid probate court. It can be time-consuming: anywhere from several months to a few years. It can be expensive: add in lawyer fees and the estate can shrink quickly. It can be complicated: in cases with no will, the probate court uses the state’s laws of intestacy to identify which familial beneficiaries get what. These situations are ripe for hard feelings and family feuds.
In spite of these realities, less than half of Americans create a will before dying. The reasons why aren’t hard to imagine: denial about our own mortality, the often-unexpected nature of fatalities, the never-disappearing list of things we are “going to get around to someday.” A will doesn’t really get you around probate, but it does provide protection and clear direction for what will happen during probate.
For an individual tasked with settling the estate of a deceased person, there are a few scenarios worth noting. In these situations, the probate process can be simplified or avoided altogether. They are:
Assets in the estate are non-probate assets.
Writing a will isn’t the only way one can dictate how wealth is passed from one generation to the next. The following types of assets effectively bypass the probate court:
- Assets held in a trust
- Accounts designated “payable on death” (POD) or “transfer on death” (TOD)
- Some jointly-owned property (if titled with rights of survivorship)
- Most retirement accounts
- Life-insurance policy proceeds
The decedent’s estate is small.
The threshold for “small” varies by state; in California, the limit is $150K. If the small estate consists of personal property only, it is possible to transfer these assets through an attorney who files an affidavit signed by all beneficiaries.
If the small estate includes real property (like a house) but still totals less than $150K, the process is a little more complicated. An attorney can file a petition to determine real property succession. Following the petition there must be an appraisal of the real property, notice of a hearing, and proof that the beneficiary has the legal right to inherit.
Both of these situations would be considered shortened, simplified probate processes that can be initiated 40 days after the death.
The decedent’s state of residence has laws protecting spouses.
Some states allow a spouse or domestic partner to file a petition with the court in an attempt to claim some of the estate subject to probate. The court could issue an order declaring a share of the community and separate property belongs to the surviving spouse.
The best way to avoid the time-consuming and expensive nature of probate court is to take action prior to death. When a person has already passed, it is obviously too late. Armed with this knowledge, a wise move would be to have a series of discussions with family members about putting these strategies into action. Collectively, you can protect family property and ensure individual end-of-life wishes are carried out when the time comes.
For estate planning, assistance with a case already in probate, or in the event of probate litigation, contact the Law Offices of Jeffrey Lohman. Our attorneys have the experience to help you protect your individual and family interests.