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Is Your Estate Plan Probate-Proof? Should It Be?

Here are important questions to consider: When was the last time you had an estate planning attorney perform a full review of your long-term plans for your financial affairs, your family, and your legacy?   For that matter, have you ever sought out such a review? Have you taken the necessary steps to keep your estate out of probate when you pass on?

Many individuals believe their estates are protected against probate. But thanks to changes in your finances over time – and perhaps misconceptions you hold about the probate process and what triggers it – that protection can erode or disappear entirely. In fact, many people are blissfully unaware just how vulnerable their estates are to probate.

This lack of awareness can have serious consequences for the next generation and any charities and causes you support. If you fail to identify these issues, your family may discover them at the worst possible time.

So, what can you do to stay current and complete? The answer is simple: conduct periodic strategic reviews of your estate plan to ensure that it’s probate proof and otherwise up to date.

Understanding the probate process

Technically speaking, probate is not a bad thing. The process is simply the government’s way of making sure your property is distributed in the right directions when you pass away. This process includes proving the validity of your Will (if you left one), evaluating your property, paying off your taxes and debts, and disbursing whatever is left to your heirs.

Most people understand that if someone dies without a Will (or “intestate,” in legal circles), a person’s belongings will go through probate. Perhaps fewer people realize that creating a Will, itself, does NOT protect their property from probate. The process can move more smoothly when you have left a Will stating your intentions for your belongings, but any part of your estate that is titled solely in your name, at the point of your death, is subject to probate, regardless of the existence of a Will.

Why probate is generally something to avoid

  • Probate can be costly. The total cost of probate can be anywhere from 5 percent or more, of the total value of the estate, in New York. These costs are deducted from the estate, which means your beneficiaries will never see that money.
  • Probate can be time-consuming. Even for a modest-size estate, probate can last between 6 months to a year, provided there are no complications. Your heirs won’t receive their inheritance until probate is complete.
  • Probate is public. One of the biggest drawbacks to probate is that it makes private matters public. When your estate is probated, your financial information, identities of your heirs and other personal information all become a matter of public record, accessible to anyone who wants to look it up, possibly even online, depending on the court system where your estate is probated.

Strategies for probate-proofing your estate

The good news is that probate is quite easily avoidable, and there are a number of effective planning tools that can help you. Since probate only applies to assets listed solely in your name, the primary goal of your estate-planning strategy might simply be to make sure you’re not the sole owner of those assets when you pass away.

For now, let’s look briefly at two general strategies for probate-proofing your estate, and the pros and cons of each.

Strategy 1: The “Piecemeal” Approach

This strategy involves going through all your assets one by one and structuring them so that they are either jointly-owned with one or more of your heirs or transferred immediately upon your death. For example, for any bank accounts or investments, you might add one or more beneficiaries as a joint owner, or insert a Transfer on Death (TOD) or Payable on Death (POD) clause that immediately transfers ownership to the other party when you pass away. For insurance policies and certain other assets, designating a beneficiary may be sufficient to protect them from probate.

PROS and CONS: For simpler or smaller estates, the piecemeal approach can be an effective and affordable strategy to bypass probate, at least for your largest and most important assets. On the other hand, this approach requires constant, vigilant updating, and in many cases these updates can be overlooked. If you were to sell or reinvest your assets, or cancel an insurance policy due to high costs of premiums, and pass away suddenly, without updating your plan, your assets would be subject to probate, and your intended beneficiaries could lose their inheritance or might eventually get a cut of some of your assets once the fees, debts and taxes are paid.

Strategy 2: Creating a Trust

A more thorough and highly effective strategy to protect against probate, is to create a revocable Trust that encompasses all your holdings. A Trust is a legal structure in which your property is held on behalf of your beneficiaries, to be managed and appropriated by an appointed Trustee. In a living Trust, you can name yourself the Trustee until you pass away or become unable to manage the Trust, at which point an appointed successor takes over. Under this arrangement, you have the same access to your property as you did before, with the exception that it is no longer exclusively in your name and is therefore exempt from probate. When you pass away, the holdings in the Trust pass to your beneficiaries per your instructions with no interruption or interference from the probate courts.

PROS AND CONS: This arrangement requires some time, effort and cost to initiate and fully fund, so that it covers all your property. Once established, it is easily adaptable to changes in your family and financial situation, and equally easy to keep updated. A Trust can also handle almost any asset and easily accommodate advanced tax planning, unlike the piecemeal approach. This approach provides greater asset protection in the case of disputes, and you can even continue to grow your wealth on behalf of your beneficiaries after you die. Perhaps most importantly, a Trust that is properly constructed and managed is your best protection against probate.

A Skilled Estate Planning Attorney can help you probate-proof your estate.

Monet BinderThe safest way to create a probate-proof estate plan is to work with an estate planning attorney to devise a customized solution. Then update that plan regularly to reflect any changes that occur in the future. If you haven’t reviewed your estate plan in a while, now is the best time to make sure your estate is probate proof. Call 718.514.7575 or email monet@mbinderlaw.com.

This article was contributed by Monet Binder, Esq. MONET BINDER, ESQ., has her practice in Queens, New York, dedicated to protecting families, their legacies and values. All halachic documents are approved by the BAIS HAVAAD HALACHA CENTER in Lakewood, under the direction of Rabbi Dovid Grossman and the guidance of Harav Shmuel Kaminetsky, shlita, as well as other leading halachic authorities.

The information in this article is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.

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