What is Probate?
The term probate literally means “to prove” a will. Today, it covers the entire legal process necessary to settle a person’s estate after their death. The appointed representative or executor (usually a family member) opens the probate case in court. With the attorney’s help, they work through the financial business that the decedent left behind.
For example, probate includes disposing of personal property, money, real property, or anything else the deceased owned at the time of their death. Probate also deals with any debts.
Why is Probate Such a Negative Thing
Probate is not inherently evil. It’s merely a legal system that oversees the way estates are handled. However, there is some truth when people say that probate should be avoided, if possible. Some reasons are listed below:
A Lack of Privacy
Probate cases are filed in court and are a matter of public record. If — for any reason — a person wants to maintain a sense of privacy after they die, it’s a good idea to avoid probate court.
Create Family Disagreements
One reason that wills and estates go to probate court is to allow interested persons to represent their claim on the estate by challenging or contesting a will that doesn’t favor them. Avoiding probate should be a top priority for people with complicated family dynamics, unpopular second marriages, or estranged loved ones. When handling an estate through non-probate channels, it’s much less likely that a will is successfully challenged.
Time-Consuming
Like most things that end up in the court system, probate can be time-consuming. In more complex estates, the entire process can last months or years. And while the family waits, the decedent’s assets or property may slowly lose value or be lost entirely.
Costly Court Process
Probating an estate requires the help of a competent probate lawyer. Since the process requires court appearances and extensive paperwork, the legal fees can mount up quickly. With proper planning, you or a loved one can avoid the high cost of probate.
If your family finds themselves with a need to open a probate matter, our office is happy to assist. However, while you are able, we suggest setting up a plan to avoid the probate process altogether.
How Can Families Prevent the Need for Probate?
Creating a solid estate plan is the best way to avoid probate. Olivia K. Smith, Attorney at Law, can work with you and your loved ones to draft the proper legal documents and carefully time asset transfers in Ohio and Kentucky estates.
Revocable Living Trust
The revocable living trust manages and distributes property. The property is transferred in title to the trust during your lifetime. You also choose someone to act as a trustee, an appointed fiduciary who will manage the trust property and any distributions after your death.
Joint Title
Another way to avoid probate hassles is by placing your assets into joint ownership with your future beneficiaries. This way, the ownership interest will automatically transfer to the joint owner when you pass away. Be aware that joint title may accomplish your goal of avoiding probate, but doing so may create tax issues.
Payable-On-Death, Transfer-On-Death, and Beneficiary Designations
Payments on death accounts (POD) let you name a person or trust to receive the assets in the account when you die. A transfer on death (TOD) designates a person or trust to automatically receive ownership of a title or deed to real estate or vehicles once you die. Beneficiary designations allow you to leave certain types of accounts, such as retirement accounts or life insurance policies, to a person or trust once you pass away.
Whether you are the executor or an heir of the estate, knowing the lawyer’s role is one of the first steps to take in the probate process. Many executors seek the advice and support of a probate attorney or hand the entire process over to them.
Trust Administration
If your loved one has gone through the trust creation process, it may still be necessary to seek guidance on where to start the trust administration process. Olivia can assist you with making a “plan of attack” and communicating that plan to financial advisors and other professionals with the goal of administering your loved one’s trust as smoothly and seamlessly as possible.
Olivia K. Smith, Attorney at Law, can help you plan responsibly for the future and navigate the probate process. Take the first step and contact our office to schedule a consultation. We can be reached by phone at 513-672-6119 or by email at oksmith@cmrs-law.com. Our office is in Cincinnati, OH, with clients throughout the Greater Cincinnati area, Northern Kentucky, and the surrounding counties.