New Yorkers will take many steps to prepare for the future by crafting estate planning documents. However, there are always factors they might miss that can be costly to their heirs. Knowing how to prevent common mistakes requires taking the preemptive steps to avoid them. One such issue is probate. Knowing how and if to avoid probate can be useful to the person and the heirs.
Probate is unavoidable with certain estate planning documents. It can be expensive and take a significant amount of time to get through. It can also serve as a disruption in managing the assets, leaving the beneficiaries uncertain as to when they will get their inheritance. Another negative aspect of probate is that it is public. Anyone who has the desire can get the records and see the value of the estate, what property was owned and how it was divided. A living trust is a common strategy to avoid probate. The circumstances and the desires of the person crafting the estate plan will determine whether probate is something to be avoided or whether it might be useful.
It can be advantageous to have probate. Some want a public record of their estate plan. With the document publicly available via probate, an executor cannot do anything untoward. If there are problems, there can be a complaint filed in court. There is also the benefit of asset certification, so it can be harder to issue a challenge regarding ownership. Estates can be created to have partial probate. For those who reside in more than one state and have assets in each, the probate laws must be considered. This is especially true with real estate. People who are protective of their privacy or have other motivations for wanting to keep the records private should consider vehicles that avoid probate.
People have different goals when they decide on strategies for their estate plans. Drafting estate planning documents should factor in all the aspects, so a well-thought-out decision can be made as to the achievement of the person’s goals. A lawyer who is familiar with probate and knows the benefits of entering it or avoiding it is a basic part of the estate planning process and should be given the proper attention.
Source: Forbes, “7 Big Estate Planning Mistakes — Not Avoiding Probate,” Bob Carlson, Feb. 26, 2018