What’s probate—and how can you make it easier for your loved ones?

Why estate planning is important

Thirty-five percent of surveyed Americans say the reason they don’t have an estate plan is because they don’t have enough assets to leave anyone.¹ But estate planning isn’t only for the wealthy—it’s for everyone. Take a moment to look around your home. Do you have family heirlooms, a favorite piece of furniture, or other prized possessions? Now think about what would happen to these items if you died suddenly—that’s why you should consider creating an estate plan. An estate plan provides guidance to your loved ones (and the probate court, in some instances) regarding your wishes, and helps to ensure that your assets are distributed the way you want.   

Overview of probate process

So what happens if your estate goes into probate?

• The court will review the initial probate petition, which often includes your death certificate and your will, if you had one.
• The probate process also involves providing notice to interested parties, which include anyone named in your will, your heirs under the state’s intestacy laws, and creditors.
• The court will appoint your executor (or personal representative), who's then responsible for inventorying the probate property and paying outstanding debts and taxes.
• Ultimately, your executor will distribute your remaining probate property, either according to the terms of your will, if you have one, or according to the state’s intestacy laws.

Potential benefits and drawbacks of probate 

Probate courts perform a vital service, offering a forum for heirs and interested parties to express their positions and, in some circumstances, resolve disagreements. But the process can also be:

• Time-consuming—It can take months or even years to complete, depending on the complexity of your estate.
• Expensive─There may be attorney fees, court fees, and other expenses.

And it’s public—anyone can check public records to find out the details of your estate.

Five ways to help minimize probate

Because of these drawbacks, it’s usually desirable to minimize, or even avoid, probate. Here are five things to consider that can help make the process easier for your loved ones.  

1 Name beneficiaries for your retirement accounts and life insurance policies—Accounts with named beneficiaries are generally excluded from probate. The money will go directly to the individuals you’ve selected.

2 Title property with joint rights of survivorship—Any property titled this way, such as a car or house, will automatically pass to the surviving owner at the time of your death. 

3 Title property with payable on death (POD) or transfer on death (TOD)—Often used with bank and other financial accounts, the POD and TOD designations are similar to having a beneficiary. Your accounts will automatically pass to the named individuals.

4 Set up a trust—A trust is considered the owner of any money or property you put inside of it. So when you die, your assets will be distributed according to the terms of the trust, once again, potentially avoiding probate.  

5 Create a will—Without a will, the probate process may be more complicated, costly, and time-consuming—and may lead to more tension among family members.  

The right approach depends on many factors, including your marital status, financial situation, and the state where you live. An estate planning attorney in your area can help you understand your options and create a plan that’s best for you and your loved ones.

Simplifying the probate process today can make a difference tomorrow   

People tend to put off things that make them uncomfortable, which may be why two out of three Americans still don’t have a will.¹ But as the last few years have shown us, life can change in an instant. So consider creating your estate plan today—if not for you, for your loved ones. That way, when the time comes, they can focus on celebrating your life, not probate court.

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