Should You Avoid Probate or Not?

Probate is the process by which a deceased individual's assets are distributed. There is a lot of confusion online about whether or not you should be crafting your estate plan with the intent of preventing your loved ones from having to go to probate court. Why do people try to avoid probate? Is probate a bad thing or not? Should you be striving to avoid probate? These are all questions I am accustomed to hearing; allow me to clarify a few things for you:

To begin with, let's answer why individuals try to avoid probate. Probate can take weeks to months, and as a result, your loved ones' may not gain access to your funds or assets immediately. While they are waiting for the probate process to wrap up, they will have to pay for things from your funeral to your utilities and estate taxes. During a probate process, the debts and assets of an estate are made public as well as the distribution of the deceased's assets. As a result, individuals who inherit their loved one's valuable possessions can become targets for burglars and scam artists.

Scared? There are several ways you can avoid probate. These ways include transfer on death accounts, payable on death accounts, joint ownership and living trusts. What do each of these mean?

• A transfer on death account is when a title is transferred from one person's name to another (you can set it up so that your real estate deeds, vehicle registration and securities are transferred upon your death to a beneficiary)
• A payable on death account is when you set up your bank account so that at the time of your death, any funds remaining in your bank account are transferred directly to a beneficiary
• Joint ownership is one of the most common tactics for avoiding probate; joint ownership is when anything you own jointly with another person is transferred to them upon your death (a common example is community property with right of survivorship).
• A living trust is when all assets that you own are placed into a trust and upon your death, passed onto a trustee

Establishing a solid estate plan now is the best way to protect your assets and prevent your loved ones from having to endure an arduous probate process. Probate court is necessary if a will was not clearly written or if it was not a legal will, if the decedent was not mentally competent or if the decedent was under duress when he/she wrote the will.

Probate might also be necessary if the decedent didn't leave a last will and testament, if the decedent solely owned his/her assets, if the decedent's assets were owned as a tenant in common/joint tenancy or if no beneficiaries were named (or if all named beneficiaries predeceased the decedent). In short, while probate can be a necessary evil, if you craft your estate plan wisely now, you might be able to prevent your loved ones from having to go to probate court.

Whether you are wishing to create an estate plan or update an estate plan, whether you are young or old, it is always advised that you seek legal advice about your particular financial and health circumstances from an experienced probate attorney. At The Law Offices of Brian C. Tanko, we have the qualifications you can trust to represent you effectively! We proudly offer potential clients a free consultation and Attorney Brian C. Tanko has 18 years of experience he brings to clients throughout Nevada. For personalized service you can trust, contact Brian C. Tanko, Esq. today at (702) 420-779