In our work as estate planning attorneys, we often speak with Minnesotans who say: “My family doesn’t need to worry about probate because I have a will.”
While these people have taken the time to create will, which is a part of an estate plan, they did not understand or possibly remember how a will is designed to function.
While a will is an important piece of many estate plans, it typically does not help you avoid probate. Here’s why you’ll need more than a will to avoid probate.
What is Probate and Why Might I Want to Avoid It?
Probate is the legal process of settling or administering someone’s estate after their death through an action filed with a court. Many people want to avoid the probate process because it is expensive, time consuming, and can cause significant hassle and stress during an already difficult time. Additionally, the probate process is public, so anyone who wants to look at the court records will be able to find a potential treasure trove of information that most people would like to keep private.
Many people opt for wills over other estate planning tools because they are typically less expensive to create. While choosing a will may save you money up front, it carries an added, and often sizable, price tag for your loved ones if they face probate to settle your estate.
Probate also takes a significant amount of time to complete. In Minnesota, the average probate process takes between nine and twenty-four months, and can take even longer if someone contests the will, if there are disputes between the personal representative and alleged creditors, or any other unexpected issues arise. A probate proceeding has the potential to put a person’s loved ones in the undesirable position of having to “fight” things out in court.
Due to the cost, time, and natural emotional difficulty that follows a loved one’s passing, probate is also a very stressful process. Avoiding probate will save the family of the deceased from both the hassle of court proceedings and the stress that accompanies them.
What a Will Does
There’s a reason a will is an important part of many estate plans. It’s a very useful tool that allows you to plan for the distribution of your assets after your passing.
A will prepares for your passing by naming guardians to care for your minor children, naming a personal representative to handle your estate’s affairs, and naming beneficiaries to receive your estate.
In short, a will is an important and useful part of an estate plan. However, a will is not a complete estate plan on its own if avoiding probate is one of your goals.
Why a Will Doesn’t Avoid Probate
A will doesn’t avoid probate because it isn’t designed to. A will is designed to distribute assets and provide instructions for your family after your passing. However, the probate process is a reality if your estate plan only includes a will and you own real estate or assets in excess of $75,000, that do not transfer by other means, since the document cannot be designed to skip probate on its own.
In fact, an aspect of the probate process involves “proving” that your will is legally valid and executing the instructions you left in your will. This aspect requires a court to review the will and supporting documents before a personal representative can be appointed.
Thankfully, there are other available estate planning tools that can be used avoid probate. A very common method is the use of a revocable living trust, which allows you to transfer your assets to a trust, while living, so the court does not need to get involved in the distribution of your assets at your incapacity or passing.
There are several exceptions to this rule, especially if your estate is a smaller one. Tools like updated beneficiary designations and transfer on death deeds can assist in avoiding probate in some situations, but not all. Relying on these tools may also have unexpected consequences for your loved ones. One major potential issue with these options is that they typically fail to account for beneficiaries that die before the person who set up these plans. Another potential issue is that no one is appointed or in charge of settling the deceased person’s affairs. Some of these potential issues can be foreseen and avoided with other estate planning strategies, like a revocable living trust.
Even if you believe one of these tools will help you avoid probate, it’s advisable to speak to an experienced estate planning attorney. We can go through your unique situation, help you to understand what tools will and will not help you to achieve your goals, and recommend the right solution for you.
The Estate Planning Attorneys at Guttman Law Can Help
People often tell our attorneys that a friend or family member avoided probate using only a will. While it might be true that someone died with a will that was not subject to probate, it generally meant that the person died without owning real estate or assets valued in excess of $75,000, that did not pass by other means. In addition to a will, these friends or family members may have utilized other tools to bypass the probate process that you may not have been aware of.
The attorneys at Guttman Law seek to address the misconceptions surrounding wills and probate by taking the time to understand our clients’ unique situations and providing comprehensive estate plans. You can schedule a free consultation today to learn more.