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Julie Garber

Avoiding Probate - Why Should You Avoid Probate?

By June 6, 2009

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Over the years I've heard and read the comments about why probate "really isn't that bad" and doesn't "cost that much" or "take too long." But usually these comments come from someone who has never even had to deal with probate, and over the years I've been convinced that everyone should try to avoid probate. Here's why:

  1. Yes, it's really true, it can take weeks or sometimes months to gain access to the decedent's cash. And during that time you'll be footing the bill for everything from the funeral, to utilities, to property insurance, to taxes, to storage fees.
  2. Court approval is often required for many things including continuing or selling the decedent's business, repairing or selling real estate, or abandoning worthless assets (think timeshares with high annual maintenance fees).
  3. With courts all across the country in a financial crisis and hurting for funding, one way to raise revenue is to increase court filing fees. This was debated in Florida where it was proposed that the probate filing fees be increased to as much as $5,000 just to open up the estate. Instead the fee for opening a formal probate estate was raised from $285 to $400. Currently in Maryland the probate fees for a regular estate range from $50 to over $2,500.
  4. Probate is a state court proceeding, which makes all of the information about the decedent's assets, liabilities, beneficiaries, and Personal Representatives a public record. And anyone can go to the court house and ask to see the entire probate file for any estate and no one at the clerk's office will care why, and in some states the entire probate file is available online.
The bottom line - avoiding probate can be easily accomplished in a variety of ways, including joint ownership with rights of survivorship (JTWROS), payable on death (POD) and transfer on death (TOD) accounts, life estates, and Revocable Living Trusts. Check with an estate lawyer in your area to determine what will work best in your situation.

Comments
June 6, 2009 at 12:03 pm
(1) David Shulman says:

Hi Julie,

Do you advise probate avoidance for all of your clients regardless of age? For younger people with minimal assets, I’m not that concerned with probate avoidance.

June 7, 2009 at 1:40 pm
(2) Julie Ann Garber says:

Hi David,

In my experience younger people with minimal assets don’t worry about estate planning! With that said, I think that it really depends on each client’s unique situation.

For example, I had one young Florida couple who really just wanted to name guardians for their minor children but the husband happened to own a vacant lot in Ohio with his brother that he wanted to go to his mother if the client died before his brother. Thus, I did revocable trusts for these clients so that #1 the husband could put his half of the vacant lot in his trust to avoid probate in Ohio, and #2 they could name their trusts as the contingent beneficiaries of their life insurance and 401(k)s. This also gave them an estate plan that they could grow into as they accumulated more wealth.

I had another young divorced client who had a 6 year old son and minimal liquid assets that would require probate. Nonetheless, I did a trust for her so that #1 what liquid assets she did have could be accessed immediately after her death, and #2 her trust could be named as the primary beneficiary of her life insurance and 401(k).

In other situations I’ve done simple wills when there hasn’t been any extenuating circumstances to do otherwise.

So, to answer your question, I think that it really depends!

Sincerely,

Julie Ann Garber, Esq.
Your Guide to Wills & Estate Planning
email: willsguide@about.com
http://wills.about.com

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