One of the things to keep in mind when you are making financial provisions for your loved ones is the fact that your estate must pass through the process of probate if you use a last will as your primary vehicle of asset transfer.

Everything has to take place in a transparent manner so that all interested parties have an opportunity to step forward and seek satisfaction from the estate of the deceased. This is going to include creditors, possible claimants, the tax man, and anyone who may want to contest the validity of the will or a portion of its contents.

In addition to the above, the assets that comprise the estate must be inventoried and prepared for distribution to the rightful heirs in accordance with the wishes of the deceased.

The estate is administered in a hands-on manner by the personal representative. Unless you choose a professional representative your administrator is probably not going to understand all of the intricacies of the probate process. This is where your probate attorney comes in.

Probate lawyers have a thorough understanding of the process, and beyond that a local probate lawyer is going to have a particular in-depth comprehension of the way that the local courts operate. A good probate attorney is invaluable as a guide that your personal representative can call upon for professional insight and advice.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

Probate avoidance is a subject that is often discussed in estate planning circles, but many newcomers to the topic don’t know what probate is let alone why you may want to avoid it. Probate can be defined as the legal process of estate administration, and during this interim the court determines the validity of the will and supervises the administration of the estate. Many people are not aware of the fact that your final affairs will be conducted under court supervision when you use a will as your primary vehicle of asset transfer. Below are three of the primary reasons why people choose to avoid probate.

Probate Is Time Consuming

The majority of individuals who are engaged in the process of estate planning would like to see their heirs receive their inheritances in a timely manner. Probate slows this transfer down considerably, because the heirs to the estate do not receive their inheritances until it has been probated and closed. Depending on the jurisdiction and the complexly of the estate this can take anywhere from several months to even several years in certain complicated cases.

Probate Is Public

Probate proceedings are a matter of public record, and there are those who would prefer that their final affairs be conducted in private. In addition, probate opens the door for those who would seek to contest your will, and probate avoidance strategies close this door.

Probate Is Expensive

There are considerable costs associated with probate. The court itself charges a fee, and the executor is entitled to compensation for his or her time and effort. The executor is going to have to bring in a probate attorney and in many cases a tax accountant, an appraiser or appraisers, and an estate liquidation company. Of course all these professional entities charge for their services. In all, the expenses incurred during the probate process can consume as much as 5% of the overall value of the estate, and possibly more in very complicated and drawn out cases.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

If you’re like most people, you’ve heard that you should avoid probate.  Here are answers to four frequently asked questions so you know both how to avoid and why you’d want to avoid probate.

Why would I want to avoid probate?

If you like to keep your personal and financial affairs private, you’ll want to avoid probate.  Probate is a public process wherein court filings with the names of your beneficiaries and how much they received is public information.  Anyone can get this information, and these days, many public filings are available on-line.  So predators and nosey neighbors don’t need to go to the court house.

In addition to having the court involved in your private affairs, probate tends to be expensive and time consuming. 

What causes probate?

Your probate estate is composed of anything in your individual name or made payable to your estate.  So, if you own your house in your individual name or have your life insurance made payable to your estate you guarantee probate.

This is true whether you die with or without a will.  Both guarantee probate.

How do I avoid probate?

Planning with a fully funded revocable living trust avoids probate.  Your assets, instead of being in your individual name, are in the name of your trust (i.e.  The Michael K. Smith Living Trust, dated July 23, 2010.)

I own my house and other assets with my spouse, do I need to be concerned about probate?

If you own all of your assets jointly and make your spouse the beneficiary of your retirement funds and insurance contracts, you will avoid probate…on the first death.  When the second of you to die, dies, probate is guaranteed.

If you have questions about probate, the probate process, or avoiding probate, consult with a qualified estate planning attorney (aka probate attorney aka trusts and estates attorney.)

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

Probate like IRS tax audit appears to be one of those words that give people nightmares. Everyone is afraid of probating an estate. There are also those persons who believe they are smart enough to handle probate on their own without legal assistance. Remember the old adage: He who represents themselves has a fool for a lawyer.

The concern about the costs of probate is understandable, especially if the decedent was of modest means. If you are the personal representative, the cost of legal representation can be assessed to the estate. You can avoid excessive legal fees by being selective in choosing the counsel you retain to assist you with probating the estate and by making potential heirs aware that bickering over trivial matters only costs the estate more money in legal fees. Having competent legal counsel will make probate faster and save the estate money in the long term.

The probate code is complicated with many pitfalls for the unwary. The personal representative can be liable if he or she fails to do their duty as a personal representative. There are statutes of limitations that must be adhered to as well as forms and reports that must be filed in a timely fashion. Small estates that have limited assets can be as or more complicated than a large estate. There are legal matters that can be handled without the benefit of counsel, probating an estate does not fall in that category. At the very least, you need to consult with legal counsel about probate procedures. The probate clerk’s office may be able to assist you with completing forms but cannot give you legal advice. If you chose to handle probate matters by yourself, the court will hold you to the same standards of conduct as it holds any attorney practicing before it.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.