Probate and Avoiding Probate

Books and seminars with respect to avoiding probate abound. But before a conversation about avoiding probate can make any sense, you need to understand what probate is. You may want to read this page before continuing.

Generally speaking, when all property will pass to the surviving spouse, it makes sense to set things up so that everything passes outside the probate estate. But there may be times when you want to have some property pass through probate, for example, for estate tax planning purposes.

If property will pass to multiple beneficiaries, it might make sense to allow property, particularly real estate, pass by Will, unless you are also setting up a trust. While you can use a transfer on death deed to pass real estate to multiple beneficiaries outside of probate, if the property is to be sold, it tends to be easier to have one person in charge – the executor under a Will, or the trustee of the trust – to make the decisions with respect to selling and conducting the sale. If there is any disagreement among the beneficiaries (or possibly, their spouses) when multiple beneficiaries hold title to the real estate, the sale process may be impeded or blocked.

Another possible reason to perhaps allow property to pass through probate is if there is discord within the family. The court is there to act as a referee in the event of a dispute. And while we hope those we leave behind will get along and follow our wishes, it might be reassuring to know that the court will be there if necessary.

There may also be times, such as when “blended families” are involved, that permitting property to pass through probate could permit the distribution scheme to go askew.

Determining when to try and avoid probate, when it might make sense to allow property to pass through probate, and what the proper tools to achieve your desired result are requires analysis. If you contact us, we would be happy to help you figure out where you want your property to go and how to get it there.