Avoiding ProbateAvoiding Probate: Key to avoiding the ‘missteps’ that can lead to ‘probate.

The idea of lawyers and courts getting involved with our estate if we don’t have a living trust, or if our estate must pass through probate, is good motivation to seek estate planning advice. Avoiding probate is key to eliminating unintended estate beneficiaries like courts, lawyers and creditors.

Probate is a legal process that is used to confirm assets and liabilities and how the proceeds from an estate will be dispensed. Moreover, any court fees and attorney expense represent money that could have been given to named beneficiaries.

A lot of states will allow specific property to pass to the beneficiaries without having to go through probate; for instance in as of 2015 Arizona allows avoidance of probate if all personal property is valued less than $75,000. In addition, property can be set up to transfer outside of probate when using a probate avoidance titling or more commonly a “living trust.”

Also, a common way to avoid probate while we’re still living is to “gift” property to family or charities. Overall, the less our estate is worth when we die, the lower the expenses incurred by the probate process. Be careful, gifting can be taxable and is certainly reportable to the IRS if the gift exceeds $14,000 per recipient as of 2016 tax year.

What’s more, if we do not want the listing of our assets and claims in a public notice when we die then it is reason enough to have a Living Trust as part of our estate plan.

In short, the simplest and most effective way to avoid probate is through a living trust. In addition, to avoiding probate the trust will give you more options for how you want your assets distributed, special trust provisions, can delay distributions until, time, age, or maturity meet your expectation. Special trust can ensure that inherited assets are protected against bankruptcy, divorce and/or creditors.

Special Needs trust allow protection of being disqualified from benefits a special needs beneficiary may currently receive; or can control assets for a beneficiary that exhibits addictive behaviors such as drug, alcohol, and gambling abuse (learn more on the Transitions Recovery Program), as well as a beneficiary that is simply unable to make wise financial decisions.

Because each state has different probate regulations, and there are many pitfalls along the way, do-it-yourself forms or software may give you a false sense of security. It makes sense to work with a licensed and experienced estate planner to develop an estate plan.


Common missteps that can lead to probate. 

A survey among top financial gurus cited numerous mistakes that not only can move assets into the realm of higher risk during the owner’s lifetime but are almost certain to cause “probate after you pass.”

  • “Adding adult children to their house as joint owners
  • “Adding an adult child to their life savings account as a joint owner
  • “Not creating an estate plan because they think that will ensure they pass away

Count on it, when things really start breaking bad after your death, like family and relatives circling outside the funeral home, you’ll be glad you took the time to develop an estate plan—the Living Trust or Will is only one document—that says who will get what, how much and when.

Depending on individual circumstances, other documents in the estate plan may include Powers of Attorney, a Living Will, Guardianship documents all of which need to be gone over in detail with an estate planner.

Contact us to learn more about our range of estate planning documents, and how we can ensure peace of mind that your affairs are in order.