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What is the Probate Court and How Can it be Avoided?

A frequent question asked by clients at the beginning of the estate planning process concerns how Probate Court can be avoided. Some clients don't have an understanding of the role played by the Probate Court in the context of an estate matter. Other clients have heard bad things about having a case go through probate and simply want to avoid it. In this article we will try to provide information regarding the role played by the Probate Court and some easily crafted strategies that can be implemented to avoid the court altogether.

What is the Probate Court?

The probate court is a specialized county wide court that deals with the property and debts of people who have died. Specifically, the court is designed to ensure that a deceased person's debts are paid and that any remaining assets are distributed to their heirs or beneficiaries of choice.

While the Probate Court can deal with personal property, it is most often used to transfer property that requires some type of process to retitle or transfer ownership. For example, a vehicle we need to have a title signed to transfer ownership. Similarly, real estate would require the preparation of a deed to transfer clear title to new owners.

The Probate Court oversees the actions undertaken by the deceased person's personal representative in the completion of these tasks. The personal representative is required to provide notice of their actions to all interested parties to ensure that the probate process is being handled correctly and in a transparent manner.

How long does it take?

While some estates can be completed in as few as five or six months, the entire process more frequently takes as long as a year and sometimes longer. Since distributions to heirs and beneficiaries are typically one of the last steps taken in the completion of an estate, this can mean that assets will take a considerable period of time before they reach the intended heirs or beneficiaries.This is often regarded as one of the reasons that people want to avoid the probate court process.

How can the Probate Court be avoided?

The need to file a probate estate for the disposition of assets can be avoided with the careful application of a number of strategies. For example, the use of a trust can effectively avoid probate altogether so long as it is properly funded and maintained. The probating of investment accounts can be avoided with the use of beneficiary designations and proper planning. Similarly, bank accounts can also avoid probate if they have the appropriate designations on file. Finally, real estate can also avoid the need for a probate through the application of what is known as a lady bird deed. Each of these strategies when applied in concert can be used to avoid the delay and expense that is a probate estate.

We Can Help

The estate planning attorneys of Penzien & McBride, PLLC have been helping families and business owners with their estate planning needs for more than two decades. If you are looking for a compassionate professional that can help you through the estate planning process, conduct a review of your existing estate plan, or if you would like additional information about our services, give us a call at (586) 690-4400 or complete our contact us form.