Protecting Your Assets From Probate
Probate is the process the court uses after an individual dies to distribute his or her assets to his or her loved ones. Probate is a necessary process for any estate, though how much is involved in the process depends on the contents of the individual’s estate and amount and type of estate planning he or she did before death.
Typically, individuals try to avoid probate as much as possible through the estate planning process because probate is time-consuming and some feel it cedes control of the estate to the court, rather than the deceased’s loved ones. This latter point is somewhat true, but the amount of control the court has over an estate depends largely on the presence and validity of the deceased’s estate plans. When an individual dies intestate or his or her estate is missing crucial documents for certain assets, the court must determine who is entitled to receive the deceased’s assets and ensure that they receive them. When an individual dies with a clear, valid will and all of his or her documents in order, the court simply oversees the distribution of his or her assets according to these documents.
Which Assets Go through Probate?
The notion of “protecting” your assets from probate is somewhat of an incorrect one. Certain assets are subject to probate, others are not, and you are not “protecting” them from harm by moving the assets into accounts like living trusts to keep them from being divided through probate.
It is a common myth that if you have a will, your assets are not subject to probate. This is not true. Your will simply states how you want your assets to be divided and who you want to execute the will.
Assets that do not go through probate include:
- Those kept in living trusts
- Property held in joint tenancy with another party who has the right to survivorship;
- Any funds, securities, or other assets kept in a payable-on-death account or form;
- Retirement accounts with named beneficiaries;
- Life insurance policies with named beneficiaries, unless the individual’s estate is the named beneficiary; and
- Property held in “Lady Bird” deeds and enhanced life
Certain assets have to go through probate. These assets include:
- Money kept in bank accounts with no co-owner and no named beneficiaries;
- Real estate owned with another party as tenants-in-common;
- A life insurance policy that names the estate as its beneficiary; and
- Real estate owned solely by the deceased.
Work with an Experienced Tampa Estate Planning Lawyer
A big part of estate planning is planning for probate. You can save your loved ones quite a bit of time, money, and effort later by moving assets into trusts and altering their titles so they avoid probate court. To learn more about this and other parts of the estate planning process, contact our team of experienced Tampa estate planning lawyers at Bubley & Bubley, P.A. today to set up your initial consultation in our office.