Can You Avoid Probate By Not Making A Will?

Many have heard that it's important to avoid probate. However, they may also have the wrong idea about what probate is and how to avoid it. Read on and learn more so that you can use the facts to plan for your estate.

What is Probate?

Probate came about as a way to handle things after someone has passed away. Specifically, probate created a legal method to deal with those owed money by the deceased. It protects creditors of the estate by setting aside funds from the assets for that purpose. Probate can take several months to be complete, however, and beneficiaries of the estate may not have access to their inheritances until that time.

Is Probate Inevitable?

Though probate laws differ in each state, many states have provisions to deal with small estates. That means the assets of the estate total less than a certain amount. In that case, the probate process might be shortened considerably or even eliminated. However, every other estate will be probated because it's the law.

What Happens if No Will is Found?

When the deceased does not make out a will or the descendants cannot locate a will, probate will proceed regardless. That means that failing to make out a will does not prevent probate from happening.

When no will is probated, the probate law attorney will file what is known in many states as the estate. The estate documents are similar to those filed with a will with a one big exception — they give the state the power to decide what happens to the assets of the estate once the creditors are paid. This process follows the laws of succession, which lists who is in line to inherit the estate.

Though it varies slightly by state, most states name the spouse of the deceased as the primary beneficiary and then the legal adult children. If there is no spouse or children, succession typically names siblings of the deceased, grandchildren, and so on.

Rather than naming a personal representative or executor, probate names an administrator when no will is filed. This position is very much like that of the personal representative. In some cases, the estate administrator must purchase a bond to ensure that the estate is safe from their wrongful actions. Also, some states allow creditors a bit longer to come forward if an estate is filed rather than a will.  Unfortunately, that can mean that probate can take longer to be complete.

Having a will can mean that probate goes smoother and might even take less time to be over. If you are interested in not only creating a will but also learning about a few ways to keep some of your property out of probate entirely, speak to an estate planning lawyer.