The probate process is a safeguard to your estate. If you are departed and there is no one to execute your succession on your behalf, then the probate sees to it that things are done according to your desires.
It is a process that is handled by an impartial court so that they can look out for the interests of the family and any person that you owe money to.
During the process, the will that you have written is presented to the court. The role of this court is to make sure the will is genuine and was properly drafted. Using the stipulations of the law, the court determines who is supposed to inherit the estate and in which fractions.
Your property is appraised and everything you have listed down. All your loved ones are informed and creditors told to lay claims if they have any. If any exist, the creditors make claims which are paid. Finally, the estate is distributed among your beneficiaries.
It is a good idea to avoid going to probate, for many reasons:
- It is expensive
- It takes a lot of time
- it exposes you to the public eye
As much as this step is recommenced for many people, there are a few things that probate won’t do for you. Let us look at these things that probate won’t do for you.
Probate Won’t Help You avoid Taxes
Circumventing probate doesn’t mean you won’t be able to pay your taxes as required by law. If you give away a vast amount of your estate when still alive, chances are likely that you will pay death or gift taxes to the government of the day.
Paying of taxes doesn’t bas eon whether the property went through probate or not – as long as you give away the estate, you have to pay tax.
It is imperative that you think about taxes when you are still alive. Talk to your estate planning attorney to understand what types of taxes you need to pay and when you will pay them. The financial planner can give you an idea of how much taxes you are required to pay.
The Right of Your Family to Your Estate Remains
Going to probate court doesn’t t change the fact that you need to leave your family with some property.
First, you need to know that your wife is entitled to some of the property you leave behind. Using probate to avoid this won’t work at all. The good thing is that most of us wish to leave our estates to our spouses and kids.
However, it is upon you to decide what to leave to your family members. For those families with kids who are still minors, the general consensus is to leave the property to the surviving spouse. If you don’t do this, the spouse might head to court to claim at least half of the estate, because it is their right.
This right varies from one state to the other, but most states agree that the half the property you acquired together or while married will go to your spouse, then you can share the rest the way you want.
If you plan to leave less than the required portion to your spouse, it is vital that you consult a lawyer to guide you on what to do.
On to kids. If both parents pass away, then the kids can inherit what has been left behind by the family. However, this is not a mandate of the law – you can decide not to leave your kids anything.
All you need to do is to come up with a will and then state the terms of inheritance – whether you wish to leave them something or you don’t intend to.
Grandkids don’t have the right to inherit anything from you unless their parents are dead. In this case, they take the position of the parent in your will.Payment of Creditors must be Accomplished
When you avoid probate you don’t avoid paying your creditors. You need to factor this in your will when leaving the estate for your family. This is because creditors have a priority compared to the family. If you don’t leave enough to pay off the debts, any asset which passes outside probate might be claimed by the creditors.
In conclusion
Avoiding probate is a good way to keep your family out of the public eye, but you need to understand that even with probate there are some things that have to be done.
An estate planning lawyer helps your family handle the probate process the right way. Call us today for assistance.
