Writing a will without planning for probate administration is like having a child without planning to be a parent. When the first happens, the second invariably follows and so, as the saying goes, failing to prepare is simply preparing to fail.
A will is a legal document that allows you to dictate how you wish to see your assets distributed when you die. Probate court is the legislative body that interprets your will and empowers your estate executor to distribute your assets. Several factors influence the probate process including your state of residence, the types of assets you own, and the overall size of your estate.
Probate horror stories abound of those who have left their estate in disarray forcing their loved ones to suffer the consequences. If you have a will, your loved ones have a date with probate court on your horizon. Accordingly, the best thing you can do to protect them from strife is to organize your estate in the interest of the simplest probate proceeding possible.
How to Prepare for Probate
The most important thing you can do to prepare for probate is to work with an estate planning attorney to draft a professional will. More than half of US adults have failed to take this crucial step and are at risk of dying intestate. Should this happen, their estate will be administered according to their state’s intestacy laws instead of their personal wishes. Often, this results in family tension with sentimental or valuable assets passing in ways that seem unfair. Further, probate administration in cases of intestacy can grow complex leading to compounding costs. A professionally drafted will ensures all of this is avoided.
Having a will is only the beginning of planning for probate, however. Many steps in the probate process can be avoided with proper asset organization and so this is also a critical matter to consider. In general, only assets titled in your name alone must go through court before being distributed to beneficiaries and yet exceptions abound, and specifics vary by state. This is another reason to consult an experienced attorney when planning for probate.
Finally, it is important to know that probate need not be involved at all in estate administration. Whether it be because you wish to maintain greater control over how your assets are distributed or because you are uncomfortable with the fact that probate proceedings are publicly available, you may want to plan to skip probate administration entirely. Often, this is achieved by creating a revocable living trust and then funding it with the assets that comprise your estate. In doing so, you place assets in the name of the trust instead of in your personal name and thereby exempt them from needing to pass through probate. Not everyone will benefit from such an approach and yet many will and so, one final time, it is worth speaking to an experienced estate planning attorney to determine whether skipping probate is the right approach for you.
To learn more about probate administration and which options best suit your needs and goals do not hesitate to reach out to the Deliberato Law Center either by calling our office at (216) 341-3413 or writing us using the contact form on our website.