Should I Try to Avoid Probate for My Estate?

About 55% of Americans die without any type of will or estate plan in place. When an estate has to go through probate, court and attorney fees may cost heirs from 3% to 8% of the estate’s value, and the process can take a year or more to resolve in the court system. Let’s delve into some of these overlooked aspects of probate and whether or not probate is something you should avoid when planning your estate.

What Probate Is and Isn’t

There are a lot of rumors and urban legends about what probate is and isn’t, which is why it’s best to work with an estate planning lawyer to clear up any misconceptions you may have heard. Probate is a process in which the court gathers assets that were solely in your name upon your death. If the asset was jointly held with another person who is still alive at the time of your passing, it doesn’t go through probate.

Probate Is Public

Another common reason why people with valuable estates want to avoid probate is the public nature of the process. The paperwork filed with the probate court becomes public record. Anyone can access it. This means that journalists, nosy neighbors, former business partners and anyone else can find out the size of your estate and who gets what. For example, the ex-spouse of your child could find out how much your child stands to inherit, and this could result in issues for your child.

Creditors Have Priority

Most people hope that all or nearly all of their assets and belongings will go to their loved ones when they die. With probate, creditors receive priority to make claims on your assets. In New Jersey, creditors have nine months to make a claim on your estate. After that nine-month period ends, the court can then process the remainder of your assets and distribute them to your heirs.

Heirs Must Wait

The probate process can be lengthy. When you name a beneficiary for an asset, they become its rightful owner as soon as you die. With probate, your heirs may have to wait a year or even longer in the case of a complex estate. This long waiting process may cause economic hardships or a great deal of frustration for your heirs. A thoughtful estate plan could nearly eliminate any waiting time and ensure that your assets go to the recipients of your choice.

Should I Try to Avoid Probate?

Many people have heard that it’s important to avoid probate because it’s costly and expensive. However, some legal processes are even more involved than probate. For example, legal guardianship usually requires more fees and time to establish. In reality, most of the probate stories you’ll hear results from people who didn’t have transfer on death directives or who owed multiple creditors, the IRS or business partners a significant amount of money upon their passing. These people could have avoided probate by having an estate plan in place. When you have a paid on death, transfer on death and revocable living trust, the probate process of your estate is minimized. This reduces the impact on your heirs and lowers the amount of your assets that must be used to pay the probate and attorney fees.

Now is the time to put your will and estate plan in place. To learn more about overlooked aspects of probate and to protect your family from the hassles of the probate process, schedule a consultation with our estate planning lawyers at The Knee Law Firm. Reach our Hackensack office at (201) 996-1200, or contact us to schedule a consultation.