Not all of a deceased person’s property has to go through probate. If the property had a properly designated beneficiary, such as an insurance policy, an IRA or a 401(k), those do not go through probate. However, if real estate is only in the deceased spouse’s name there may need to be a probate.
What Are The Options For Avoiding Probate?
There are different options for trying to avoid probate, though some are not recommended. The best option to avoid probate is to have a properly drafted and funded revocable living trust for the assets. This trust is held in the individual’s control during his or her lifetime. Additionally, there are other options for avoiding probate on certain assets such as payable on death or transfer on death designation. Those need to be very carefully thought out and coordinated with other parts of an estate plan. Our attorney’s have seen those cause serious problems in an estate when they are not used properly.
For example, Wisconsin actually has a different tool for avoiding probate and called a “Washington Will”, which is a is specialized type of marital property agreement that can transfer property after a spouse dies and that is only available to married couples. After a spouse is deceased, property can be transferred without probate with one of these written instruments. While this is another option for avoiding probate, the best and most comprehensive way is to do so though is a properly funded revocable living trust.
Can Probate Ever Be A Better Option Than A Living Trust?
No. That is the easy answer. However, under certain rare circumstances, there is a possibility that probate may be a better option than a trust but that is something which is determined on a case by case basis. We have had only had one client in our entire career request they specifically wanted the probate process. They wanted to make sure their beneficiaries had to account to the court while distributing the assets because they didn’t trust anyone in their family to make sure it all went smoothly. That is the one case where one of our attorney’s would recommend that a probate is a better option.
There is another case where a probate is required to get the best result for the family. This is when a spouse dies, and their surviving spouse is in a nursing home and on Medicaid. Because of the way the Medicaid law is written, a probate case is necessary to properly preserve the survivor’s Medicaid benefits.
Is Probate Necessary?
Some people don’t think a probate is necessary and sometimes people can get away with not doing a probate for 10 or 15 years after a person dies. In fact, our firm has been involved in case that was done some 30 years after a person had passed away. The reason for the ability to wait so long is that, although not ideal, as long as someone is paying taxes on a piece of real estate, it can generally stay in the name of the deceased person.
This all unravels when the property needs to be sold. What should happen shortly after a person dies is the legal process of transferring assets over to the living descendants. This can be done through a trustee if the person planned using a trust, or through the court if not. When it comes to real estate, probate is necessary if you ever want to sell that property or transfer it legally. Sometimes, it’s one of those things that can be put off but in the end, it will have to happen. Many of our clients love the fact that probate is not necessary in cases where a person has properly planned with a living trust.
For more information on going through the probate process, a initial consultation is your next best step.
The estate lawyers of Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients with all matters related to estate planning, trusts, and probate matters.
We invite you to request a consultation with one of our experienced attorneys to discuss what estate planning strategies would be best to make sure your family doesn’t have to deal with probate when you’re gone.