When we are confronted with the death of a loved one, the last thing we want to think about is a mountain of paperwork. Yet for many Americans, passing away is not just a tragedy, but a tragedy followed by a trail of legal complications.
Most Americans lack a proper estate plan. These are simple and effective measures that work not only for the rich, but for anyone with anything to their name. If you have a family and own a home, a vehicle, a small tract of land or a modest savings account, then with a few tools, you can ensure that if anything happens to you, your family can mourn in peace without being confronted with an untimely summons to the probate court.
For some, probate represents an unnecessary complication, an inconvenience that only deepens the emotional wound of sudden loss. For others, however, probate can open the gates to much bigger problems. There have been reports of individuals losing their assets to dubious professionals, due to confusing paperwork and the overwhelming jargon of inheritance law. Some have lost entire livelihoods by signing something with unforeseen repercussions, with no solid option for retribution or compensation.
When not approached with a clear head and a calm mind, probate is not only painful, but dangerous. Dealing with the aftermath of a loved one, however, is rarely easy – which is why it is important to prepare beforehand. And for the many where that is not an option, it is important to keep in mind what options you do have.
What Is Probate?
The probate process is meant to create a setting for a family to deal with the affairs of their late loved one, providing a court for disputes to be settled under the watchful eye of an objective third party. Probate also provides a setting for creditors to lay a claim against the estate, within a limited period.
The first step in a probate court is to legitimize the will. This gives time for someone to come forward with a more “accurate” will – in some cases, last-minute changes to a will and testament may be proven to be the result of extortion, or some other means of coercion. As such, probate is also a place to settle disputes as to what the real will of the decedent was.
Once a proper will is established as legitimate, the court chooses an administrator, and the process of distributing the estate begins. Ideally, probate takes nine months to a year and the contents of the will are faithfully executed. In the absence of a will, a probate case still follows the same procedures – only instead of following a will, the state’s intestate laws are followed. That means the property is divided between the surviving spouse and next of kin, while all jointly-owned/community property goes to the spouse.
However, the court itself does not see to it that the estate is properly distributed. Instead, it appoints an administrator/executor to do so. This is a complicated and demanding task, which is why the administrator/executor often must rely on the advice and guidance of attorneys.
Appointing an Administrator/Executor
Your administrator must be someone you can completely trust – not someone on your payroll. The executor of a will gets full control over the decedent’s estate – and while abuse of that power is illegal, some cases of abuse still slip through the cracks, leaving families heartbroken as well as robbed of their loved one’s estate and property.
If you yourself do not have the time or the experience to distribute the contents of an estate, find someone with the know-how and the trust to do so, preferably within the family. Or, alternatively, find a way to skip probate altogether, and distribute the estate through altogether different means.
Avoiding Probate Altogether
If your loved one did not have an estate plan of any kind, then probate in some cases is unavoidable. But if you are planning to set up an estate plan for yourself and for the benefit of your family if anything ever happens to you, then it is important to be aware of what you can and cannot do.
Probate can be avoided by choosing alternative estate planning tools. Most Americans do not have an estate plan, and those that do often leave a will as the only form of documentation for how they would like their belongings to be distributed.
However, there are plenty of options and simple legal documents that can open a world of possibilities for people under different circumstances. One example is the pet trust, which allows you to assign a fund for the care of your pet after your passing and offer suggestions as to which home the pet will go to after you pass away. This is to ensure that your pet does not end up in a shelter if your family decides not to take care of him/her.
POD/TOD clauses on properties and bank accounts let you assign beneficiaries to certain parts of your estate, so they automatically transfer over to their name when you die.
Living Trusts vs. Wills
The two major options for most people when considering an estate plan is the revocable living trust, and the last will and testament. Trusts offer greater privacy, greater control, and allow you to easily avoid probate and distribute your assets on your own terms, through a trustworthy successor. A will, on the other hand, may be adequate for smaller estates – if your total assets have a market value of less than $150,000, the probate process can be expedited in California. Speak to a legal professional for more details.
For anything larger, or if you do not wish your financial details and properties to be made public record, a living trust allows you to maintain control over your assets while offering a good way for your children and loved ones to avoid probate.
Starting the Estate Planning Process
Estate planning is not only for retirees. The general best advice is to look into simple and effective estate planning options once you have people who depend on you and are the proper owner of anything worth passing along. It is best to be prepared rather than have a tragedy hit your family any harder than it alright might.
Do not simply buy property or vehicles under the name of your children or sell your home to them at a fraction of a cost as a “gift”. These tactics have considerable tax penalties and may not be your best option. Instead, a payable-on-death/transfer-on-death clause may allow you to transfer certain property without probate, while a living trust is an even better and more comprehensive option for a sizeable estate.
Keep in mind that a revocable living trust is sometimes more complicated to amend than a will, or alternative estate planning methods. An irrevocable living trust, as the name suggests, cannot be amended.