Probate Avoidance in New York
An individual should not necessarily try to avoid probate, but a couple who has everything in joint name, avoids probate. Sometimes probate is very useful if a person wants to set up a trust for the benefit of their children; usually, this cannot be done without probate. A trust can be set up in advance, but avoiding probate is not important unless there is a married couple where the surviving spouse receives everything. When the surviving spouse dies, there should be a will to determine who gets the property.
Probate Avoidance Planning
Probate avoidance planning is when an individual takes steps to try and make sure that all of their assets pass outside of their will. For example, ensuring that their insurance is payable to the beneficiary. An individual’s joint accounts go to the survivor, while their in-trust-for accounts go to whomever the individual wants. People can do it, but it may not be worth the effort. Additionally, an individual can have a fully funded living will.
Probate in New York is not that complicated, unlike other states where the court stays involved in the administration of the estate until the last nickel is distributed. In New York, an individual can just probate a will, and may never have to walk into the courthouse again or have any involvement with the court.
Disadvantages of Avoiding Probate
A person may want to set up a trust so that other people do not get all of their money at once, and things like that.
Every circumstance is different, but sometimes probate is useful because an individual can have more appropriate dispositions of their property by going under a will, or a will in combination with a living trust.
Role of a Probate Lawyer in Probate Avoidance Planning
A probate lawyer can explain what can be done to the clients, and how they can set up their assets. People should hire probate lawyers because they cannot do these things themselves if they are not already familiar with the process.
When drafting a will for client, a probate lawyer gets information as to who the heirs would be in the absence of a will. The lawyer obtains the names and addresses of brothers and sisters or children who have been estranged from the family. In the event the person only has one individual who would inherit their property in the absence of a will, the lawyer prepares a family tree. That information should be collected prior to the person’s death so the names of the parents, whether they are alive or dead, when they died, and the names of the children are available. If they do not have parents, children, or spouses, the names of any brothers and sisters and their descendants should be obtained. Getting all this information in advance helps expedite the process.
Before an individual passes away, they should make sure the will is done correctly and that they have witness affidavits. They should ensure that the will is straightforward, and clearly outlines a listing of who they want the property to go to, along with a family tree. When documents that must be submitted to the court are prepared in advance, the probate process is much faster, and the advantages of moving faster are saving money and proceeding more smoothly.
A Living Trust
A living trust is created while an individual is alive, and it takes effect while the individual is alive, as opposed to what is called a testamentary trust, which is included in the individual’s will. The testamentary trust only goes into effect when the individual dies.
A Living Trust and Probate
Very often, an individual could set everything up in a living trust and then they may have a will in addition to that which stipulates that any assets in the individual’s own name that were not transferred into their living trust go into the living trust upon their death. Then the trustees of the living trust, as opposed to the executor of the estate, distribute money under the terms of the trust.