Most people have probably heard that it is a wise course of action to avoid probate if possible. After the death of a loved one, many of us want to skip a process that can be lengthy and expensive when settling a relative’s estate. While probate is sometimes necessary for large estates and cases where the deceased person’s will is incomplete or unclear, often it can be avoided with some planning and preparation. Here is what you should know about avoiding probate and whether you should.
What Is Probate?
Probate is the legal process that occurs upon someone’s death. It typically involves court appearances and often requires the services of a probate attorney. The probate court determines whether the deceased’s will is valid, and the estate’s executor distributes property according to the law and the person’s will. Any debts and taxes will be paid with the proceeds of the estate, and the assets will be inventoried. The process can be simple or complex depending on the size of the estate.
Why Avoid Probate?
Probate can hold up the distribution of assets for weeks or months depending on the complexity of the estate. There are also legal fees involved, such as attorney fees and executor fees that can account for as much as 5% of the estate’s value. Normally the fee is based on a percentage of the estate, which can vary by state. You might have to pay court costs or fees for property appraisers as well. Contact a local Queens probate lawyer with questions about probate law in New York and how you can minimize the cost of handling your estate.
How to Stay out of Probate Court
Ensuring that property passes directly to heirs without involving probate can be accomplished in several ways. First, you can establish a living trust. Property held in trust is not counted as part of your probate estate, although it will be included when calculating estate tax. Because the trustee owns the property, it is easily passed down without necessitating probate. Making gifts of property also ensures that you will circumvent probate, as the asset is no longer part of the estate.
Joint ownership is most often used by spouses, making it so property passes to one of the joint owners upon the death of the other. Bank accounts and real estate are often held jointly, meaning that probate is avoided and the property simply goes to the joint owner. Usually, no further documentation is needed. Small estates also allow for expedited probate in most states. The term is defined differently depending on the state, so check the state guidelines for a small estate by contacting a New York estate planning lawyer.
Although sometimes it is beneficial for executors to simply handle the estate on their own, if questions arise, you should contact an established probate lawyer for guidance. To speak with an experienced Queens probate lawyer, contact the law offices of Richard Cary Spivack for a consultation today.