Simply put, many individuals reach out to us to develop an estate plan that reduces the cost, time, and effort associated with the probate process.
What is the big deal with probate?
The probate process takes time to finalize. If the estate (meaning: all the money and property owned by an individual at death) is complicated – or, worse, contested - the estate may take longer to close (meaning: pay debts and distribute the assets).
The probate process is generally a matter of public record. So, if maintaining family privacy is important to clients, avoiding probate should be a goal.
The probate process, also, costs money. We always tell clients that it is impossible to predict how much the probate process might cost, because it depends on a variety of factors, including the family dynamic, whether the decedent had a valid and unambiguous plan in place, whether the assets are easily identifiable and easy to locate, etc.
So, why put in the work, now, to avoid it? Properly prepared estate planning documents are designed to avoid unwanted costs, time, and effort of probate, especially appreciated during a time when families are grieving.
What is the “probate process”? By definition, probate is the process of transferring administration of estate contents (assets, real property, etc.) previously owned by a now deceased person, called “the decedent”. If a decedent executed a valid Will, the “Personal Representative” or “Executor” named in the Will has priority to be appointed to administer the Estate.
But what if the appropriate steps are not taken and there is no plan in place? What happens then? If the person dies intestate or the nominated Personal Representative declines to serve, then interested parties (including creditors) can apply to be appointed. Ultimately, the Court will make the final decision as to who will administer the Estate.
Intestate. There’s another obscure term. In the State of Colorado, when a decedent dies with no known Will (or a Will deemed to be invalid by the court), the person’s assets will pass to the heirs (essentially, the closest relatives) under “intestate succession” laws. If the decedent has no Will and no heirs, the estate’s assets pass to the State of Colorado. Albeit an undesirable outcome, this is called “escheatment.”
Whether or not you have a Will, accounts having a specified beneficiary (and not your Estate) or co-owner are not subject to the terms of your estate planning and pass outside of the probate process. Furthermore, assets owned by a trust are also not subject to a probate proceeding. As such, it is important to remember that the titling of your accounts will generally trump what is outlined in your Will, so periodically checking and updating your designated beneficiaries is critical.
At Legacy Planning and Probate, we urge our clients to plan for tomorrow, today. If avoiding the probate process is important to you, then you should consider setting up proper estate vehicles with a trusted attorney. The energy spent properly preparing, in advance, is a genuine gift for your family and friends.
As a note: Legacy Planning and Probate serves clients in Colorado and Texas. However, we are currently not taking probate administration cases in the state of Texas.