Choosing Probate

You can choose whether or not your assets will be subject to the probate process.To do so you need to understand the advantages and disadvantages and how they might apply to you.

Advantages of Avoiding Probate

Since the court is not involved, your trust settlement does not become part of the Public Record, so others will not see the terms of the trust.

Your wishes cannot be contested if there is no will or probate court to oversee the distribution of your estate.

Although it can be expensive and take a large amount of time and effort to set up and maintain a trust, there are many reasons you would consider doing this — especially if you have a large and/or complicated estate.

  • You will avoid all the costs and lost personal time associated with probate court and likely save time and money in the long run.
  • Avoiding probate court may reduce estate taxes and protect some assets from creditors. There are exceptions, which may include some forms of Joint Ownership.

Even if your estate is under a certain dollar threshold, avoiding the probate process may still have financial benefits.

  • Your beneficiaries may get their inheritance more quickly, rather than waiting out the weeks, months, or even years that may be required to complete the probate process.
  • This may prevent beneficiaries from paying out-of-pocket for funeral costs, taxes and bills because your bank accounts, investments, etc. would otherwise be frozen until the probate process ends.
  • To avoid the lost income from attending meetings and court proceedings and save money on all the fees involved with the probate process.
  • To avoid the cost of a second-state probate process if there is out-of-state property, unless it is under the monetary threshold of that state.
  • When there is no will, your choice of beneficiaries can’t be contested by your other relatives in probate court.

Advantages of Going Through Probate

When the probate process is short and simple as with most small estates in most states, probate proceedings may have some benefit.

  • The court oversight protects your estate by assuring that the will is settled as you intended.
  • The process will protect your estate if you die without a will.
  • All costs are eventually paid out of the estate, so you will not need to use other financial resources that you might have needed for other reasons.
  • The simplified probate process, despite the filing fees, newspaper publication charges, and attorney fees, will likely be less expensive than setting up a trust.
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