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 making their Wills 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 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 all personal property, real estate, and other assets.

North Carolina General Statutes § 28A-28-1 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 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 is not a way to completely avoid probate. However, it can help prevent the legal battles and lengthy procedures that people normally associate with the probate process.

Summary Probate May 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 is 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 to avoid complex processes and contested inheritance. Call our firm today to learn more.