What is Probate and Why You Want to Avoid It

Are you curious what Jacqueline Kennedy Onassis or Elvis Presley did with their fortune? How they dispersed their assets? Shockingly, it is simple to find out how their fortune was divided up because both used a Last Will and Testament in their estate plan.  A Will must be probated, therefore, making it available to the public.  

Probate is the legal process normally required after a person’s death. Its purposes can include (amongst several others): 

  • Identifying, appraising and distributing the assets of the deceased to the intended beneficiaries or heirs. 
  • Providing a legal forum to challenge the validity of a Will. 
  • Notifying and paying creditors of the deceased. 

Even though probate can serve several purposes, people often vigilantly plan to avoid probate for many personal reasons. 

Reasons to Avoid Probate 

  • No privacy – Your financial affairs will be made public. Your nosy next-door neighbor can go down to the courthouse and view all the documents filed with the court. Notice of the probate will be published in a local newspaper to alert all creditors. 
  • Lengthy – Beneficiaries cannot receive assets until the probate process is concluded. The probate process can take months to years to be completed depending on multiple factors. 
  • Costly – Professional fees and court costs can add up to a significant sum. Every dollar spent on probate reduces what is passed on to beneficiaries. 
  • Disputes – The validity of a Will may be challenged by any “interested” person. This may potentially invalidate the Will in question. 

Two Ways to Avoid Probate 

  • Not all assets must go through the probate process and some can immediately be passed on to beneficiaries. Common non-probate assets include, trust property, jointly owned property, designated beneficiaries of life insurance proceeds, and funds held in a “payable on death” account. 
  • As the creator of a Revocable Living Trust you can name yourself as the Trustee of the Trust and name someone close to you as the successor Trustee. The Trust, created and activated during your lifetime, will continue to be controlled by you and allows assets to be easily transferred in and out of the Trust. Upon your death or incapacity your successor Trustee will take over automatically. 

This article was submitted by Craig Dell, attorney at law. Mr. Dell may be reached at 801-783-2515. 

1 Comment

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