A lot of people have a fear of probate. Technically speaking it is a court proceeding and generally, most people do not like dealing with the courts. Therefore if you don’t like dealing with courts, then you are not going to like going through probate.
An affidavit of transfer is an alternative option to probate only when people have less than $50,000 in probateable assets, in other words, anything that would pass through the probate court. Typically that would include any real estate, bank accounts, or other personal property that was held in the deceased person’s name. However, again the total of all assets would have to be under $50,000.
Another option for estates over $50,000 to avoid probate requires planning before the person passes away.
Another option to avoid probate is by creating a revocable trust and then transferring all of the assets into that trust. Upon doing so, if a person then dies, there would be no need for a court case. This is the best way for most people to plan their estates.
There are other less comprehensive and generally less advisable ways for specific assets to avoid probate. These include payable on death (POD) or transfer on death (TOD) designations on bank or investment accounts or real property. Assets held jointly with rights of survivorship will also transfer without probate if one joint owner dies and the other joint owner survives.
While there are many ways to avoid probate on specific assets as discussed, our attorney’s have some very serious concerns regarding planning estates with PODs and TODs and joint ownership. Often when people plan with these methods, they do not consider the interaction of different assets and the availability of assets to pay for things like funerals, real property taxes, mortgage payments, utilities, etc. after a person’s death. However, all of those can be protected by creating a living trust and transferring all of the assets into that trust in order to avoid probate.
Why Do People Generally Fear The Probate Process?
A lot of people have a fear of probate. Technically speaking it is a court proceeding and generally, most people do not like dealing with the courts. Therefore if you don’t like dealing with courts, then you are not going to like going through probate. Additionally, there is a lot of paperwork that is going to be reviewed by people who are fairly persnickety. If you dislike paperwork or if you don’t like dealing with a bureaucracy that is fueled by paperwork, that is another reason you will probably dislike the probate process.
Throughout the probate process, people have to be patient and for some a probate can last years and years. Typically, in Dane County, Wisconsin, where we handle a majority of our cases, probates last longer than twelve months. That seems like a long time but the first four months of probate are basically waiting. Claimants have at least that long to take notice and then make a claim against the estate. The last eight or nine months of probate is generally consumed by doing an inventory and making sure there are values for every asset that the person had. Additionally, it can take some time to find all of the heirs, liquidate the real estate or other property, and to verify the inventory.
More commonly though the majority of time spent in probate is maximizing the estate. Often people who pass away may have had real estate that they have had for many years. If it is developed real estate it might be real estate that has not been updated. An estate may take part of the proceeds of the estate to do some work to improve a house before it is sold. This can take months and sometimes the estate or the Personal Representative decides they can wait until spring, which in Wisconsin is the time to sell a house. Typically, the houses get better prices and the markets are better this time of year. If someone passes away in the summer, it may be nearly a whole year before that property is ready to be sold.
For some beneficiaries that can be a nightmare having to wait for the money that was promised to them in an estate. In other cases, disagreements and arguments can arise once a family member dies. These are just some of the reasons horror stories and fears arise out of the thought of going through probate and this actually happens quite often.
Who Are The Main Players In The Probate Process?
The main players in a probate case are the Personal Representative otherwise known as the executor, and the beneficiaries or the people who will receive assets from the estate. There are also creditors or the people or businesses that are owed money by the estate which almost always include the funeral home as well as credit card companies, etc. Additionally, there is the probate court itself and the probate commissioner who is typically involved in every case as well as the circuit court judges who are involved only in formal probate matters.
If probate is informal from start to finish, the judges do not get involved. However, they will get involved if there is a formal portion of that probate, for example, if someone objects to a will, or if people disagree on who will be the Personal Representative.
Lastly, there is typically at least one attorney involved in the probate process and if needed there can be a CPA or a tax firm involved as well.
For more information on Options Besides Probate, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling the estate lawyers of Krause Donovan Estate Law Partners, LLC. We practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Use our online form to request a consultation with one of our experienced attorneys.