David Lerner Associates; Probate Pros and Cons
Estate planning is not a subject most people like to think about, but it’s something everyone should consider.
When a person dies, the estate goes through probate – this is a process that manages, settles, and distributes property according to the terms of the person’s will.
Probate proceedings fall under the jurisdiction of the probate court (also called the Surrogate's, Orphans', or Chancery Court) of the state where the deceased was a resident at the time of death. This court oversees probate of personal property and any real estate that is located in that state. If there is property in another state, a separate "ancillary" probate proceeding may be needed to be initiated in the other state.
Items that are subject to probate are known as probate assets. Probate assets generally consist of any property owned individually at the time of death that passes to the beneficiaries according to the terms of the will. Examples of non-probate assets include property that is owned jointly with right of survivorship (e.g., a jointly held bank account) and property that is owned as tenants-by-the-entirety (i.e., real property owned jointly by a husband and wife). Other examples are property that passes to designated beneficiaries such as proceeds of life insurance and retirement benefits and property held in trust. Property that does not pass by will, right of survivorship, beneficiary designation, or trust will also be subject to probate.
Why avoid probate?
Most wills have to be probated. The rules vary from state to state, but in some states, smaller estates are exempt from probate, or they may qualify for an expedited process.
Probate can be slow. Depending on where the executor of the will probates an estate and the size of the probate estate, the probate process can take as little as three months or as long as three years. Three years can be a long time to wait for needed income. It can take even longer if the estate is a complicated one or if any of the heirs are contesting the will.
Probate can be costly. Probate costs usually include court costs (filing fees, etc.), publication costs for legal notices, attorney's fees, executor's fees, bond premiums, and appraisal fees. Court costs and attorney's fees can vary from state to state. Typically, the larger the estate, the greater the probate costs. However, if a smaller estate has complex issues associated with its administration or with distribution of its assets (e.g., if the person who died owned property in several states), probate can be quite costly.
Probate is a public process. Wills and any other documents submitted for probate become part of the public record–something to consider if you or your family members have privacy concerns.
Why choose to go through probate?
For most estates, there's usually little reason to avoid probate. The actual time and costs involved are often modest, and it just doesn't make sense to plan around it. And there are actually a couple of benefits from probate. Because the court supervises the process, you have some assurance that one’s wishes will be abided by, and if a family squabble should arise, the court can help settle the matter. Further, probate offers some protection against creditors. As part of the probate process, creditors are notified to make their claims against the estate in a timely manner. If they do not, it becomes much more difficult for them to make their claims later on.
In addition, some states require that a will be probated before the beneficiaries under the will can exercise certain rights. Among the rights that may be limited are the right of a surviving spouse to waive his or her share under the will and elect a statutory share instead, use the residence during his or her remaining life, set aside certain property, and receive a family allowance.
How to avoid probate
An estate plan can be designed to limit the assets that pass through probate or to avoid probate altogether. Property may be passed outside of probate by owning property jointly with right of survivorship, by ensuring that beneficiary designation forms are completed for those types of assets that allow them, such as IRAs, retirement plans, and life insurance (to avoid probate, the estate should not be made the beneficiary), by putting property in a trust, and by making lifetime gifts.
IMPORTANT DISCLOSURES
Material contained in this article is provided for information purposes only and is not intended to be used in connection with the evaluation of any investments offered by David Lerner Associates, Inc. This material does not constitute an offer or recommendation to buy or sell securities and should not be considered in connection with the purchase or sale of securities.
To the extent that this material concerns tax matters, it is not intended or written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be imposed by law. Each taxpayer should seek independent advice from a tax professional based on his or her individual circumstances.
These materials are provided for general information and educational purposes based upon publicly available information from sources believed to be reliable– we cannot assure the accuracy or completeness of these materials. The information in these materials may change at any time and without notice.
Some of this material has been provided by Broadridge Investor Communications Solutions, Inc.
David Lerner Associates does not provide tax or legal advice. The information presented here is not specific to any individual's personal circumstances.
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