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How to Avoid Probate

Posted on in Estate Planning

money-probateBy Attorney Denis Regan

Sorting through the sometimes murky waters of an estate after a loved one has passed away can be a difficult and confusing proposition. Add to this the potential of going through a long probate battle and it can become doubly challenging. The mere mention of the word probate can strike fear into the hearts of even the heartiest of souls.

Probate is the legal process for the distribution of an individual's assets after they have passed away. In essence the court inventories the assets of the deceased individual and distributes them to the appropriate heirs or beneficiaries after all debts are paid. Many people falsely believe that if you have a will, you will avoid probate. However, this is not the case. In actuality, probate comes from the Latin word for "prove" meaning that the probate process proves the validity of the will.

So why would you want to avoid this process? There are several reasons you might want to steer clear of probate court in Wisconsin. Among the most common are:

  • Financial Savings - Probate can be an expensive endeavor and can lead to thousands of dollars in legal fees. These fees become higher the larger and more complicated the estate and assets.
  • Maintaining Privacy - Once the court opens the estate issue, it becomes public record. This means, anyone can obtain a copy of your will and have access to information regarding your assets.
  • Less Hassle - There are many steps involved in the legal process of going through probate, making it a very time-consuming undertaking. Avoiding this aggravation can ease the burden on family or friends who are responsible for your estate.
  • Avoid Delay - When you go through probate all your assets are tied up in the legal process. The paperwork and claims involved can take many months to resolve, thereby delaying the distribution of your assets to heirs or beneficiaries.
  • Minor Trusts - In the event that a will establishes a trust for minor children or grandchildren, the trust is subject to court oversight and the necessity for annual account reviews.

One of the easiest ways to avoid probate in Wisconsin is to put all assets into a revocable living trust. The trust then becomes the entity with ownership of your property. Once a trust is formed, you must name beneficiaries of the trust. Upon your death, all assets in the trust will be transferred to the individuals named as beneficiaries and will be free and clear of a probate situation.

Another way to avoid probate is to create a joint tenancy or payable on death clause. In essence, upon your death, all your assets will be given to the individual named as your joint tenant. It is important to note that this is not an appropriate solution if you have significant assets, because they could be subject to gift, estate or capital gains taxes. Additionally, if the assets need to be divided between multiple beneficiaries, a joint tenancy is not recommended.

Understanding the legal intricacies of probate, revocable living trusts and joint tenancy is not something that is recommended for the layperson. To make sure your assets are taken care of appropriately it is recommended that you contact legal representation such as one of the experienced lawyers at Gimbel, Reilly, Guerin and Brown LLP, to discuss your options.

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