Freedom of Speech
Freedom of speech is the Constitutional right to communicate one’s opinions and ideas, using one’s body and property to anyone who is willing to receive them.
Avoiding Probate?
Many people ask us if there is a way to avoid probate, that is, to avoid the need to have their estates processed in probate court. In fact, there are strategies that can help avoid the need to put your estate in probate, and they can be effective in the right circumstances. For example, if you intend to leave your entire estate to your spouse, there’s a good chance you can efficiently avoid probate court. However, some strategies used to keep estates out of probate can do more harm than good.
Reasons for Avoiding Probate
If your estate does not have to be filed in probate court, you avoid the filing fees and attorney fees that would be incurred probating the estate. These usually aren’t as bad as people think, but it’s good to avoid them if possible. Also, if an estate is probated, notice must be sent to all of the deceased person’s creditors, and they can make claims against the estate.
Problems with Titled Assets
The main impediment to setting up your estate plan to avoid probate is assets that have title owners – houses, cars, etc. If you own real property in joint tenancy with your spouse, then your spouse automatically acquires full title upon your death without the need of probate. However, if your house or other real property is in your name only and there are no other deeds, then there is no way that your heirs can take title unless your estate is probated. One way to avoid this problem to prepare a beneficiary deed – which provides for your house to pass to some other person upon your death. If that person survives you, they can acquire the property without needing probate. Similarly, you can create an assignment of title for a vehicle that is in your name only, to pass to someone else on your death.
Accounts
Bank accounts, investment accounts, etc. are another issue. If these are in your name only with no beneficiary, then there is no way for your heirs to get the money out without probating the estate. The problem can be avoided if the account is jointly held and the other owner survives you, or if you have a designated beneficiary or “pay on death” recipient for each and every account.
Leaving “Percentages”
If you are not leaving your estate to one person, but instead are dividing it up according to percentages such as between your children, this creates a problem if you want to avoid probate. Without a probate administrator, it may not be possible to divide up your assets.
Using Trusts
Some people try to avoid probate by placing all of their property in trusts, to be administered outside of probate court. However, such measures frequently do more harm than good. Having your assets administered in trust can create serious disputes between your heirs and the trustees down the road, and often involve more administrative costs than if you had just let the estate be probated.
Create Your Estate Plan
To find out what you can do to avoid probate, or even if you should, speak with an experienced estate planning attorney about your intentions and options.
Unsure if your estate plan reflects what you want? Schedule your consultation with Sam now.
Sam Ventola has over 30 years’ experience in estate planning, probate and probate litigation. When he is not working for his clients, he enjoys spending time with his family, especially his grandson Jack.
Ventola Law serves the Denver Metro area including Arvada, Aurora, Boulder, Brighton, Commerce City, Castle Rock, Golden, Lakewood, Littleton and Arapahoe, Adams, Douglas and Jefferson Counties.