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How Can I Avoid Probate?

Probate has a reputation as being a contentious and lengthy process. It can be an opportunity for relatives or others to contest the validity of a will or attempt to inject their supposed legal rights into the proceedings. Understandably, many people who are making their will aim to avoid probate if at all possible.

Unfortunately, it is difficult to avoid probate altogether. However, there are steps that a person can take to significantly decrease the chances of a lengthy probate process and contested inheritance. For more information on avoiding probate, consult a dedicated estate planning attorney.

Full Probate is Not Necessary When a Decedent is Married

One way to try to avoid a lengthy probate process is to name a living spouse as a primary beneficiary of one’s estate.

This means that if the testator dies before the spouse, the spouse stands to inherit:

  • Community property
  • Real estate
  • Retirement accounts
  • Bank accounts
  • Life insurance policies
  • And other assets

North Carolina law describes summary administration. In short, this process allows a decedent’s estate to avoid probate when the surviving spouse is the sole heir. Here, the spouse may file a petition with the probate court requesting summary administration and asking for the quick transfer of ownership.

This application must include information regarding:

  • The marriage
  • The probable value of the decedent’s personal property
  • Whether the decedent’s will has already gone to probate

It is important to note that summary administration and joint tenancy is not a way to avoid probate completely. However, it can help prevent the legal battles and lengthy procedures that people normally associate with the probate process.

Summary Probate Might Be an Option

One of the goals of the probate process is to ensure that a decedent’s assets go to appropriate creditors and beneficiaries. However, this may seem unnecessary for those who pass away with few assets. Because of this, the law allows for a simplified probate process called summary probate in certain situations.

Much like summary administration, summary probate is available when a person names their surviving spouse as their sole heir for an estate that has a value of less than $30,000. Additionally, summary probate is an available option regardless of the identity of heirs if the value of the estate is less than $20,000.

To apply for summary probate, an interested party must file an application with the court that outlines:

  • The value of the estate
  • A copy of the will
  • The names of all beneficiaries/heirs

If a court certifies this application, the decedent’s property can exchange hands without the usual process of appointing an executor.

Avoiding Probate is Rare, but Limited Probate Options Do Exist

Whether or not an estate goes to probate is out of a testator’s hands. The two main factors that determine whether an estate goes to full probate are the identity of heirs and the value of the estate.

However, a knowledgeable attorney can advise on limited probate options such as summary administration or summary probate. In general, careful estate planning with legal guidance can help your estate avoid probate. Call our firm today to learn more.

FAQ: Avoiding Probate

How long does the probate process take?

Generally, probate can take anywhere from a couple of months to around a year. However, probate is different for every decedent’s estate. For example, a large estate worth millions of dollars may take longer to go through probate than a significantly smaller estate. Another factor that affects the length of probate is whether or not beneficiaries contest the will. Probate will often take much longer to complete if a beneficiary has an issue with the will or the executor.

If you’re the executor of an estate, consult with a probate attorney. They can help make the probate process much easier and quicker.

Do trusts avoid probate?

Another method to avoid probate is putting your assets in a trust. When you create a trust, you’re transferring the trustee ownership of the trust funds. Then, the trustee is responsible for distributing the assets to the beneficiaries. Since the assets in the trust are no longer in your name, it avoids probate.

Do I have to worry about probate if I have a will?

Some people believe that having a will negates the need for probate. However, most estates have to go through some form of probate, even if you have a will. In fact, one of the purposes of probate is to administer your estate according to the conditions of your will.

Still, it’s important to create a will to protect your assets. If you don’t have a will, the probate courts decide how your assets will be distributed. This means you’ll have no say in who will inherit your assets.

Author Bio

Paul Yokabitus

Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.

Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.

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