Probate is a legal process required by the individual states when a person dies. Each state’s probate laws and procedures differ slightly; however, the purpose of probate in all states is to locate and inventory property of the decedent, pay credit claims, and ultimately transfer property left by the decedent to the proper individuals or entities. Because probate can be a lengthy, and costly, process, one of the most common questions posed to estate planning attorneys is “Can probate be avoided ?”
The short answer to that question is that probate cannot usually be avoided entirely; however, your estate’s exposure to probate can be significantly limited with proper estate planning. In the State of Illinois, some small estates qualify to use a “small estate affidavit” in lieu of formal probate. To use a small estate affidavit the estate must be valued at less than $100,000, not include any real property, and not have any outstanding claims or debts. Although this is still considered a probate process it is considerably less costly and takes much less time than formal probate.
For estates that do not qualify to use the small estate affidavit option, formal probate is required. The length of time an estate takes to complete the probate process will depend on the value of the estate, the complexity of the assets, and the presence or absence of litigation within the probate process; however, even under the best of circumstances an estate will take six months or longer to probate.
The good news is that there are numerous strategies that can be used to limit your estate’s exposure to probate, thereby speeding up the process and saving your estate money – money that will then be available to pass down to your family and loved ones. The most important thing to remember when attempting to avoid probate is that is an asset is not part of your estate at the time of death it does not need to be included in the probate of your estate. For example, assets that have been transferred into a living trust prior to your death are no longer considered part of your estate. Therefore, they are not included in the probate process. Likewise, assets that are properly titled as jointly owned will pass directly to the co-owner upon your death, avoiding the probate process.
By working closely with your estate planning attorney you can create an estate plan that decreases the value of assets that will be required to pass through probate which will result in a more expeditious and economical probate when the time comes.
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