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What is probate and how can you avoid it?

For baby boomers, many of whom are reaching their retirement years, estate planning has moved to the forefront of their minds. Once you are into your mid-60s, you start to realize many of your friends or older relatives are passing away and you want to make sure your affairs are in order sooner rather than later. In the estate planning process, the term probate comes up a lot, leaving many confused as to what exactly probate is and why you might want to avoid it.

Probate basics

Probate is the legal process a person’s property goes through after they die. It involves making sure a will is valid; identifying and gathering the deceased’s property; paying any debts, taxes or estate expenses; and then distributing the remaining assets to those who entitled to receive them.

Going through probate can be a long process—taking anywhere from several months to years. Anyone who owns property and doesn’t have a will must go through probate. Those who die with a will and named beneficiaries also go through probate, but your will, not the state, determines how assets are distributed.

Avoiding probate

If you would like to avoid the probate process, consider taking one of these steps as part of your estate planning:

  • Add a joint owner to your bank account, investment accounts or the deed for your property. This does have tax implications, however, as the beneficiary may need to report this  to the IRS. Also, if you are remarried, you may want to be careful about adding a spouse as a joint property owner. Then your spouse is free to do what they want with your property and you may want to pass own some of those assets from a property sale to your children from a prior marriage.
  • Set up a revocable trust. Upon your death, the ownership of your property transfers to the trust, reducing delay to distribute your assets and reducing costs. Revocable trusts also allow more privacy than probate—curious friends or extended relatives won’t be able to find out the details of the estate and possibly decide they want to contest the will for a share in it.
  • Make sure your retirement accounts or life insurance policies have beneficiaries named.
  • Designate your bank accounts as payable on death and any nonretirement investment accounts as transfer on death.

By working with an experienced estate law attorney, you can set up your estate plan for an easier transfer to your surviving spouse or simplify settling your estate for your loved ones while they are dealing with grief. Having a comprehensive estate plan will ease your peace of mind and theirs.

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