If you’ve ever experienced the probate process first-hand, then you probably have at least some idea about how frustrating it can sometimes be. The process itself can take as much as a year or more to be completed, and the value of the estate can be diminished by court costs, legal fees, and other expenses required to settle the decedent’s affairs. Worse, there are often heirs who are forced to wait many months or years before they can receive their inheritances. The good news is that you don’t have to subject your heirs to those frustrating delays. An experienced estate planning attorney can show you how to avoid probate and create a plan that secures a sound legacy for your loved ones to enjoy.
Why Avoid probate?
Given that most people don’t even have wills – much less trusts or other estate planning strategies, there’s no disputing the important role that probate plays in settling decedent estates. Without a process like probate, there would be no orderly way for debts to be settled or assets to be distributed to heirs. The decedent’s last wishes would have no way of being enforced, and unsavory actors could seek advantage through sheer force of will.
Of course, even the most useful processes aren’t always the best option. That’s true with probate as well. In many cases, the best choice is to avoid probate altogether. For example, you may want to avoid probate if you want your estate’s disposition to remain a private matter. You might want to avoid estate tax implications. There may even be heirs whose inheritance requires the use of strategies that can provide more protection for assets than you can get from a simple will.
Trusts are perhaps the most well-known probate avoidance tool available for estate planning purposes. Trusts provide a legal structure to enable you to pass wealth on to your heirs without those assets going through probate. You create the trust, assign a trustee to manage the assets and enforce its terms, and name the beneficiaries to whom you want trust assets distributed when you die. Since probate only impacts assets that have no other legal means for transfer of ownership, the trust enables you to accomplish asset distribution without using that process.
Most people still prefer to use the revocable trust for this purpose, since that type of trust provides the grantor with the ability to name himself as trustee. That enables the grantor to maintain control over the assets until he dies, at which point a successor trustee takes over responsibilities for managing the trust and its assets. With the revocable trust, the grantor can continue to benefit from the trust assets for the remainder of his life. As a result, this trust provides the type of freedom and control that many people look for during their estate planning efforts.
Addressing Special Circumstances
Probate can also be avoided using the irrevocable trust. That type of trust is like the revocable trust in design, but cannot be revoked or changed once it goes into effect. Moreover, it typically contains language that is designed to accomplish specific goals that cannot be achieved using a traditional revocable trust. For example, an irrevocable trust may contain language designating it as a spendthrift trust, which will enable it to protect assets from an heir’s bad money management habits. These trusts can be used to provide protection against creditors, secure inheritances for heirs with special needs, and plan for important benefits like Medicaid.
Non-Trust Options for Probate Avoidance
Obviously, trusts aren’t always for everyone. In some cases, you can accomplish probate avoidance without creating a trust, and achieve an orderly transfer of assets using other estate planning techniques. For example:
- You can use joint tenancy with right of survivorship to own property with another person. When you use this strategy, the asset is owned in a way that ensures that the surviving tenant maintains ownership when one of you die. Many married couples in other states use a form of joint tenancy called “tenancy by the entirety” – but that form of tenancy is not recognized by the state of Georgia.
- In Georgia, you can also use payable on death designations with bank accounts to ensure that your account assets automatically get distributed to a person you designate as your beneficiary. When you die, that beneficiary needs to prove their own identity and provide the financial institution with proof of your death to receive the assets.
- You can also use gifts to transfer assets to a beneficiary while you’re still alive. That can help you to not only avoid probate but some tax liability as well. There is a lifetime gift limit for estate tax purposes, however, so gifting strategies are best accomplished with the advice of an attorney. Still, when you make use of your annual gift exclusion, and have a strategy to give away the maximum amount allowable each year – $14,000 to any given individual – you can accomplish many of your inheritance planning goals and reduce the size of your estate at the same time.
It’s important to stress that probate avoidance may not always be necessary. Still, when you do want to help your heirs avoid the probate process, it’s comforting to know that there are so many useful options available to you. Your estate planning attorney can help you to evaluate all your options and determine which strategies will work best for your unique circumstances and goals.
An Estate Planning Attorney Can Help!
Avoiding probate is easier than most people think, but it’s still something that most people shouldn’t attempt on their own. At the Fouts Law Group, LLC, our experts can help you to create a plan that includes the right strategies to help secure asset distribution without the need for any court-supervised process. If you’d like to learn more about how to avoid probate with solid estate planning strategies, and schedule your consultation with our probate experts, contact us online or give us a call at (404) 596-7520.
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