Woman estate planning with attorney

A Look at the Probate Process and How to Avoid It

The probate process is a central part of planning how your assets will be managed and distributed after your death. Given its role in estate planning, why is there so much discussion on how to avoid it? While probate serves as a legal framework for asset distribution, the process involves a commitment of time, a certain amount of expense, and to some extent a forfeiture of some level of privacy. Knowing how to navigate or bypass this process in some cases can make for a smoother, more efficient transfer of your estate to your loved ones. Therefore, having a solid grasp of what probate entails and the strategies to sidestep it can be important in estate planning.

What Is Probate?

Probate is the legal process that occurs after a person’s death, aimed at authenticating their will and distributing their assets according to that will. In the absence of a will, Minnesota state law determines how assets are distributed. During probate, a Minnesota Probate Court oversees the identification and inventory of the deceased person’s property, the payment of debts and taxes, and the distribution of the remaining assets to beneficiaries. Essentially, it serves as a formal method for settling an estate, making sure that all legal and financial obligations are met before assets are transferred to heirs.

Why Avoid Probate?

Avoiding probate is often desirable for several reasons. First, probate can be a time-consuming process that can take months or even years to complete, which delays beneficiaries from receiving their inheritances. Second, the fees associated with probate, including court costs and attorney fees, can quickly accumulate, eroding the value of the estate. Lastly, probate records are public, meaning that the details of your financial affairs and named beneficiaries become part of the public record, potentially compromising privacy. Therefore, avoiding probate can offer a quicker, more cost-effective, and private way to pass on your assets.

Strategies to Avoid Probate

  • Joint Ownership – Joint ownership refers to holding assets like real estate, bank accounts, or even vehicles in the name of more than one person. When one owner passes away, the asset automatically passes to the surviving joint owner without the need for probate. This “right of survivorship” makes joint ownership a straightforward way to bypass the probate process for particular assets, although it’s important to consider the implications for your overall estate plan.
  • Payable-on-Death Accounts – Payable-on-Death (POD) accounts are financial accounts, such as bank savings or certificates of deposit, where you designate a beneficiary to receive the funds upon your death. The advantage of a POD account is that the funds bypass the probate process, going directly to the named beneficiary. This is a simple and effective way to ensure that specific financial assets are transferred quickly and privately to your chosen recipients.
  • Living Trust – A living trust is a legal entity you create to hold and manage your assets while you’re alive, and to efficiently transfer them to beneficiaries upon your death. One of the primary advantages of a living trust is that assets placed in the trust do not have to go through probate, speeding up the distribution process and maintaining privacy. While setting up a living trust can involve more time and expense upfront compared to a simple will, many people find that the benefits, such as avoiding probate, outweigh the initial costs.
  • Gifts – Gifting assets to your loved ones while you’re alive is another strategy to reduce the size of your estate and potentially avoid probate. Transferring ownership of assets such as money, real estate, or valuables prior to your death means these items won’t need to go through the probate process. However, it’s essential to be aware of any gift tax implications and how gifting might affect eligibility for Medical Assistance (Medicaid) or other government benefits.
  • Life Insurance – Life insurance policies can be a straightforward way to pass financial benefits directly to your named beneficiaries without the need for probate. Upon the policyholder’s death, the insurance payout is made directly to the beneficiaries, avoiding the delays and expenses often associated with probate. This makes life insurance an effective tool for ensuring that your loved ones receive financial support promptly after your passing.
  • Small Estate Laws – Some states, including Minnesota, offer simplified probate procedures or exemptions for smaller estates. Knowing these rules can help you plan your estate in a way that may avoid probate altogether.

Learn More About Strategies to Avoid Probate

While probate serves a functional role in the distribution of assets after death, it has some drawbacks and so you may want to consider strategies to bypass the process as part of your comprehensive estate planning. In some cases implementing tactics like joint ownership, living trusts, or designating beneficiaries for payable-on-death accounts can make the transition smoother and more efficient for your loved ones. If you’re interested in tailoring an estate plan that minimizes the impact of probate, we encourage you to reach out to Unique Estate Law for expert advice and guidance.