Avoiding Probate: A Guide for Consumers

Imagine a scenario where your hard-earned assets, the home you cherish, and the savings you've meticulously grown over the years get tied up in a lengthy, costly legal process when your loved ones need them the most. 

This is the reality for countless families navigating the probate system after the loss of a family member. Probate, a court-supervised process of distributing a deceased person's assets, can often be more of a burden than a relief. It's not just the legal formalities; it's the precious time and privacy your family could lose in the process. Fortunately, there are strategies to ensure your legacy directly benefits those you care most about, bypassing the complexities of probate.

What is probate?

Probate is a legal process that occurs after someone passes away, involving the validation of their will (if one exists) and the distribution of their assets under court supervision. This process is needed to ensure a deceased person's debts are paid, and their assets are distributed according to their will or, if no will exists, according to state laws. Probate can be time-consuming, expensive, and public, prompting many to seek ways to circumvent the process.

When does probate occur?

Probate is generally required when a person dies owning property solely in their name without any designated beneficiary. The duration of probate varies significantly depending on the estate's complexity, the probate court's efficiency, and whether the will is contested. It can take anywhere from a few months to over a year for an estate to navigate through probate.

Legal strategies to avoid probate

Fortunately, there are several legal strategies to minimize or avoid probate, making estate planning an essential tool for anyone looking to streamline the transfer of their assets to their beneficiaries. Here are some key strategies:

Set up a living trust

One of the most effective ways to avoid probate is by setting up a living trust. A living trust allows you to transfer your assets into a trust during your lifetime. As the trustee, you maintain control over these assets and can specify how they should be distributed upon your death. Since the trust owns the assets, they bypass the probate process.

Look into joint ownership

Holding property jointly with the right of survivorship means that upon the death of one owner, the property automatically passes to the surviving owner(s) without going through probate. Married couples commonly use this method and can apply it to real estate, bank accounts, and other assets.

Designate beneficiaries beyond your will

Many financial accounts, such as retirement accounts, life insurance policies, investment accounts, and bank accounts, allow you to designate a beneficiary or beneficiaries who will receive the assets directly upon your death, thus avoiding probate. These are often referred to as “payable-on-death” (POD) or “transfer-on-death” (TOD) designations. It's important to keep these designations up to date to reflect your current wishes. 

Some states, including Wisconsin and Minnesota, also allow you to use a Nonprobate Transfer on Death Deed to transfer real estate directly to a named beneficiary or beneficiaries, again avoiding probate. Keep in mind that beneficiaries under a Nonprobate Transfer on Death Deed become co-owners of the real estate, which may cause issues in some families. 

Consider gifting assets

By gifting property or money during your lifetime, you can reduce the size of your estate that would potentially go through probate. There are limits to how much you can gift without incurring tax consequences, so it's important to consult an estate planning attorney to navigate these rules effectively.

Consult an estate planning attorney in La Crosse

Implementing these strategies can significantly reduce the burden on your loved ones by simplifying the transfer of your assets after your passing. However, estate planning is a complex field that requires careful consideration of your unique circumstances and goals.

This is where the expertise of an estate planning attorney becomes invaluable. An experienced attorney can help you understand your options, develop a comprehensive plan that aligns with your wishes, and implement strategies to ensure your estate avoids probate as much as possible. By discussing your estate planning needs with a qualified attorney, you can take proactive steps to protect your legacy and provide for your loved ones with minimal legal hurdles.

By Katelyn Doyle, La Crosse Estate Planning Lawyer at Johns, Flaherty & Collins, SC. If you have questions about avoiding probate, contact her at 608-784-5678.


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