Many people believe that having a will written avoids probate. Instead, having a will often guarantees probate is needed for your estate. However, in many cases, there is no reason to see this as a negative thing. Probate is the process of proving your will and distributing your assets and paying creditors. It can be an expensive process, but does not have to be. In fact, having a will can decrease the expense associated.
If you actually want to avoid probate, there are mechanisms to do so. These generally include the following:
A Revocable Living Trust
In the type of trust, you transfer assets from your name into the name of the trust, which then owns them. You and/or your spouse can be named as the trustee, the person who administers the trust and manages the assets.
This can include management of real estate, investments, and other assets, as well as making distributions. You will name a successor trustee should you die or become incapacitated and leave instructions for what happens with the assets upon your death. Because of this arrangement, the assets in the trust pass as you designate outside of the probate process.
POD (Payable-on-death) accounts
This type of account, upon your death, will pay the balance to whomever you designate. This could be a third party such as a family member or friend, a trust, or even your estate. These accounts pass outside of probate to the designated person or entity unless they are POD to the estate. They can be a good tool for ensuring your family immediately receives funds upon your death rather than waiting for the probate process to be complete.
Importantly, these options will not apply for all persons and will not guarantee probate proceedings can be avoided. It is always possible your life circumstances will change between now and your death or that someone with a viable interest in your assets (typically a family member) will want to contest your arrangement after your death. Also you should consult a tax advisor to review any arrangements made in conjunction with legal counsel as some of these options may carry negative tax implications.
If you want to craft an estate plan that avoids probate or puts more control in the hands of your family, you don’t need to figure out how that works on your own. The estate planning attorneys of Oldham & Delcamp are familiar have experience helping clients with this goal and are prepared to help you too. Call Oldham & Delcamp today to discuss your estate planning matter.
Oldham & Delcamp is a member of the Attorney’s Real Estate Council of Broward County, is also currently on the Board of Directors of the Broward County Bar Association, and is the former chair of the Real Property section.
When your freedom is on the line, you need an attorney that is aggressive, responsive, and experienced. Oldham & Delcamp is committed to making sure that each of our clients receives the personalized attention of one of our attorneys.