When is probate required? If you die with a will and do not have other plans or documents to transfer your assets, probate may be required to appoint an executor and distribute the property in accordance with your will. Why would I want to avoid probate? The probate process requires the executor be represented by an attorney. The attorney fees are often over $4,000.00 in the simplest cases, and tens of thousands (or hundreds of thousands) in more complex cases. The executor will need to appear in court, and prepare an inventory and final accounting for the estate, which makes the property of the family part of a public record accessible by anyone who calls the county clerk. In probate, the executor is required to notify creditors and give them the opportunity to be paid out of the assets of the estate. Probate can expose estate assets to creditor claims before property reaches your beneficiaries. Thoughtful non-probate planning can sometimes provide significantly greater protection, depending on the asset and circumstances. For example, in probate, a credit card company with a $20,000.00 claim against the estate may be required to be paid before heirs can receive their distribution, where an estate passing outside of probate may totally avoid paying the claim (saving your family thousands). If the estate is set up to avoid probate entirely, there is no need to pay a probate lawyer, wait for the court to set a hearing, or notify creditors and be required to pay off any unsecured debts. How can I avoid probate for my loved ones? To determine whether your estate may pass outside of probate, we look at two primary options: trusts, and asset-specific plans. A trust allows you to appoint a trustee to manage and distribute your property, and for large estates with many assets, a trust is often the most efficient and comprehensive option to protect your wishes and keep your loved ones out of a public probate court proceeding. If you have what may be considered an ordinary estate, with a home or two, a few vehicles, some bank accounts, debts, and some investments and retirement accounts, you may be able to avoid probate entirely by using asset-specific documents to transfer each asset you own to the person you designate without the necessity of a trust. For real estate, we use lady bird deeds to transfer your property upon your death to the person or persons you designate. For vehicles, we use a DMV form to designate a beneficiary for the vehicle, which must be taken by the person you designate to retitle the vehicle within 180 days of a death. For financial accounts, including bank accounts, investments and retirement accounts, you may designate a beneficiary at the bank or other financial institution, and that person will be able to receive the funds at death with a copy of the death certificate and a photo ID. If your real estate, vehicles, and financial accounts are set to pass outside of probate, what is left of the estate? For most people, what remains is simply their personal property which does not have any official title or require a court proceeding to be distributed. Most people will leave a letter to their loved ones indicating who is to receive which items, and what should be done with the rest. As a backup, our clients have a will, which allows the heirs to go to probate court only as a last resort if there are unresolvable disputes as to the remaining estate property. Call 361-579-2490 and we will be delighted to talk with you about your estate and your options to help your loved ones avoid the costs and delays associated with probate court.