Many of the inquiries to my firm
include questions about avoiding probate. While the probate process can be
drawn out and sometimes expensive, it has a few advantages, such as requiring a
fair appraisal of the estate value and giving some protection from creditors.
As with any legal process, there are pros and cons. Nevertheless, many people
wish to avoid probate in a desire to streamline their estate planning.
Generally, an estate is subject
to probate, in the form of what is called the probate estate. The probate
estate includes property not held in joint tenancy or that which has designated
beneficiaries, such as life insurance policies. Probate is required unless certain
assets, such as real property, are removed from the probate estate. For
those who wish to avoid probate to the extent possible, there are a few ways to
help do so. One way is to move certain assets into a trust.
Another way is reducing the value of the probate estate to below $75,000, for it to qualify as a "small estate," not subject to probate. That means eliminating some high-value assets from the probate estate:
- TOD/POD designations for as many financial instruments as possible. Bank accounts, investment funds, etc.
- Transfer on Death Deeds (TODD) for the home and vacation properties. This takes the properties out of the probate estate by transferring it to named beneficiaries.
- Transfer on Death (TOD) registration of motor vehicles and watercraft.
- Gifting money while you are still alive. The IRS allows you to give up to $15,000 per person per year without triggering the federal gift tax. (Married couples can give double that amount.)
- Giving property to charities while you are still alive.
Even with a probate avoidance
strategy, the above measures do not eliminate the need for a well-crafted Will.
Distributing your remaining personal assets and nominating fiduciaries should
not be left unplanned. If minor children are in your estate plan, you will want
to nominate individuals to act in their legal interests. Without a valid Will,
your assets will be distributed according to the laws of intestate succession,
which may not reflect your wishes. Not having a Will could also give rise to
family disputes after you have died.
Consulting a qualified Minnesota estate planning attorney is the first step in protecting your hard-earned assets for the future of your loved ones.