Have you heard that you need to avoid Probate? The public nature, time and cost are all valid reasons to attempt avoiding Probate.
What does the public nature of Probate mean? Simply put, Probate is a civil lawsuit. Unless specifically asked for and granted in limited situations, all information supplied in lawsuits is available to the public.
The length of time required is set at a minimum of 6 months. Outside of this set time minimum, the length of time depends on the parties involved and the complexities, or simplicity, of each family and its members. The typical Boise citizen’s Probate lasts 6-12 months.
Price is often the most important factor up front. If you live in Meridian, you should be prepared to pay anywhere from $2,000 to $5,000 to Probate your Will. In many cases your final cost will also include these “fixed costs” of court costs, attorney fees, the cost to publish the Notice to Creditors, and other incidental expenses.
With an understanding of “Why” some people attempt to avoid Probate, let’s cover the “Hows.” I will provide this disclaimer, I DO NOT recommend you attempt these methods, as they have serious hidden traps. But, they are completely legal for you to do.
“Payable on Death” or “Transfer on Death” designations can be added to many bank accounts and brokerage accounts. Whatever remains in those accounts after the owner of the account passes away will be distributed to the named beneficiaries without having to go through Probate. *One potential setback. Whoever is named the designee will have absolute ownership of the account. Your wants or wishes outside of that transfer do not matter and will have no legal significance.
“Joint Tenancy” ownership can also avoid probate. It can be used for bank accounts, vehicles, and real estate. When one of the Joint Tenant owners passes away, that share disappears and the property is thereafter owned jointly by the remaining Joint Tenants. *One potential setback. Whoever is named joint owner, currently owns that property. If that person has a creditor or goes through a divorce, that asset is considered theirs and the creditor can attach to it and take it.
“Devolution Agreement” is where property owned by a married couple can pass to the surviving spouse when the first one passes away. But this can’t be used unless there are no other intended beneficiaries of the property. *One potential setback. This method will not avoid probate when the second spouse passes.
Each method, taken individually can, on the surface, avoid Probate for whatever property it has authority over and no other. Also, without further intervention, Probate will eventually be required to distribute the assets at a later date.
There is one option not mentioned that can avoid all of these concerns. That is a Revocable Living Trust. If you properly create it and fund it, a Trust can avoid the public nature, time, and cost of Probate. That is why a Trust is an attractive offer to many clients.