How Do I Avoid Probate?

We have all heard about the horrors of death probate.  It is a public process your loved ones are forced to go through after you die, which discloses everything you owned, what creditors you had, exposes family fights, and tells the world who inherits your estate.  It's expensive, as a general rule of thumb, costing +/- 5% of the value of your estate.  Through probate processes, you pay maximum taxes.  It's time-consuming, often taking more than a year to complete.  When probates are complete, your estate is left utterly unprotected from lawsuits, creditors, divorces, addictions, gold diggers... we could go on.  But did you know there is a second type of probate that is also a nightmare? It is called living probate or a guardianship/conservatorship.  In those public proceedings, you get hauled into court and declared incompetent. All of your assets and creditors are made public records, and a judge picks someone to control your life and assets (under court supervision, of course).  Regardless of which type of probate we are talking about, it is invasive, expensive, and a real burden upon your loved ones.  We all know that we want to avoid it if possible.  

So, how do we avoid these horrible experiences for our families? 

Well, when it comes to death, probate, the answer is simple.  The only way to avoid death probate is to not own anything when you die.   Easy enough, you can just spend it all before you die.  But nobody knows when they are going to die, and there are few things scarier than outliving your money.  You might think, “Maybe I can just give it all to my kids now and they can take care of me.”  Are you ready to give up that kind of control? Let your kids decide where you will live, how much money you need, and what you are going to drive.  What if your kids lose your assets due to a lawsuit or divorce?  You might think next, “What about joint tenancy or life estates?”  Well, those can work pretty well, so long as you don't need to enter a nursing home, or you or your kids don't have creditor issues, divorce issues, or get sued.  

There must be a better way!  And of course there is - it is called a living trust, and it allows you to keep control of your assets, avoid probate, and protect your estate and loved ones.  It is the estate planning vehicle that the vast majority of our clients choose to prepare for that inevitable event.  

But how do you avoid living probate? Living probate can be avoided with a combination of legal documents, your trust, a durable power of attorney, and a medical power of attorney.  These documents allow you to choose who will make your decisions and take care of you and your assets when you are no longer able.  These documents keep the courts completely out of it and keep your loved ones (whom you chose) in the driver's seat.

We’ll end with a word to the wise, because if you Google all of the documents listed in this article, you will be able to find forms for each of them.  If you choose the one-size-fits-all cheap legal website or free internet documents route to try and address these issues yourself, they often won't work for you and your family, and you will see your family marching into court for those difficult probate processes anyway. Let an experienced law firm like Lubnau Law help guide you through this process and secure your estate.