Should you consider avoiding probate?

January 2, 2008 by Marcel

Our first article in 2008 is a guest post by Alex T. Roshuk. Want to be a guest writer on Financial Dominance ? Contact Marcel

Probate is the process of having your will accepted by a Probate or Surrogate Court so that the estate will be administered and all the claims and distributions on the estate will be settled. Without a Will this process is called the administration of an estate. In the first case the Will names the Executor or Executors who administer the property, in the second case the Administrator is set by statute, agreement of the heirs and the approval of the Court. This article deals with some of the problems with probate and, to a lesser extent, administration of estates and some suggestions on how to remove your assets from your estate to avoid these problems in certain cases.

The process of probate can be complex, long, and protracted. Needless to say, it can consume a sizeable percentage of the estate assets. While it’s important to consider drafting and executing a “Last Will and Testament“, before undertaking such an important step in one’s life, one should be made aware of other options that may conserve at least some of one’s assets in a more efficient manner.

Drafting and executing a Will is generally a fairly straightforward process but you need to make sure that the formalities in your jurisdiction are adhered to in the strictest manner possible. Why? Because protracted probate proceedings may occur whenever there is a deviation from these procedures or when individuals who have something to gain if a particular Will is not accepted for probate (i.e. the intestate heirs or distributees who may be receiving substantially less when a Will is written). Such errors may be used to drag the probate procedure on causing a lot of grief to your intended heirs and may result in your assets going to people you did not intend to give them to. Also remember that a Will is a valuable document like a check, you should never have old Wills circulating that have not been destroyed and make sure that they are properly tied (with a ribbon and seal). Never allow your lawyer to keep a “copy” of the Will unless this is mentioned in the Will itself and never sign more than one copy of any signature page when executing a Will (this may later lead to fraudulent Wills being created that are basically impossible to detect).

Problems with Probate
Probate lawyers may attempt to exacerbate animosity between distributees and testate heirs and sometimes the court may appoint “law guardians” to protect the interests of minors or parties under a disability (such as someone who has been institutionalized or in a coma). Such legal representatives are usually entitled to compensation from the estate corpus, i.e. your hard earned money going to pay lawyers you have never even met. Someone who feels slighted after your death because you have not given them their “due share” of your property may feel it necessary to fight for it in probate. They may accuse your heirs of over reaching, undue influence, duress or they may suggest that you were incapacitated when you planned or executed your Will or that your lawyer took advantage of you and convinced you to sign a Will that would benefit beneficiaries who were friendly with the lawyer. The originality of jilted heirs is boundless and some unscrupulous probate lawyers may take advantage of the situation as a means to secure their sizable fees.

What you can do
It may be possible to take some or even all of your assets out of your estate. The main vehicles for such an estate plan including holding property in “joint tenancy with right of survivorship” (JTRS) or making bonds, stocks or bank accounts POD (payable on death) to a beneficiary. JTRS means that the property is automatically transferred at the time of death of one of the “joint tenants” to the other remaining owners of the real property. Naming a beneficiary is also the common procedure with life insurance proceeds, retirement accounts and annuities. One only needs to make sure that the financial institution has listed a beneficiary or beneficiaries (it is also possible to name contingent beneficiaries this way). These funds will then be available to the beneficiaries as soon as a certified death certificate can be produced and delivered to the financial institution along with whatever other proof the institution needs in order to release the funds; such accounts do not enter into the estate of the decedent but pass directly at the time of death.

Unfortunately this is the way our legal system has been created and the rationale for Surrogate or Probate Court is that the court “system” is there to protect the interests of the departed. However unscrupulous individuals may attempt to use your death as an opportunity to benefit thereby and thus deprive you of your true intention to past your assets onto those whom have designated in a Last Will and Testament. Before deciding to put all your assets into a Will make sure you have considered all the options and spoken to an estate planner who has your – and your chosen heirs – best interests at heart. Remember there may be valid tax or liability reasons to place some of your property in an estate, but using the vehicles mentioned here may make it easier for your intended heirs to get some of your hard earned assets quickly and with a minimum of legal costs at a time when they will certainly need help.

By Alex T. Roshuk, Esq. (Remember, legal information is not legal advice, please seek legal representation before making any important decisions about your estate needs).