Avoiding Probate: Definitions and Key Reasons

March 23, 2018

Many of our clients name avoiding probate as a key goal when requesting our assistance in preparing a well crafted estate plan. At Wokwicz Law Offices, we have decades of experience navigating our clients around probate.

A Brief Overview of Probate

Before we get into avoiding probate, it is important to discuss briefly what the probate process entails. There is a basic definition of the probate process is in our estate planning glossary.

Give Yourself Peace of Mind

A properly crafted estate plan can give you peace of mind, knowing your assets are well protected. Our estate planning lawyers will help you get there.

Essentially, probate is a court process that is required for certain assets such as bank accounts, real estate, vehicles and other property that are titled solely in a deceased person’s name without a beneficiary named. Probate usually requires hiring of an attorney, filing inventories and accountings, tax returns, and obtaining tax clearance called a Closing Certificate for Fiduciaries from the Wisconsin Department of Revenue. Probate typically takes about a year to complete, although that can vary depending upon a number of factors. (As estate planning lawyers, we have shared a general discussion of probate elsewhere on our site.)

Having a Last Will and Testament Does Not Avoid Probate

It is important to dispel one common misconception about what a will does. A Last Will and Testament, by itself, will not avoid probate. (In a previous article, we spell out how a Will by itself does not avoid probate.)

While an important part of any estate plan, a Will alone will only set out who you want the court to appoint as your personal representative to be charge of your probate and who is to receive your assets. This appointment and asset distribution takes place through the court probate process. If we can limit “probate” assets to less than $50,000.00, then we can often avoid a full probate and instead have assets transferred more informally through a non-probate Transfer by Affidavit process.

Avoiding probate through proper estate planning

Probate is Optional – An Experienced Attorney Can Help

There are many ways of avoiding probate. Each client’s situation should be reviewed taking into account the family relationships, desires and assets. As experienced attorneys, we can advise and construct an estate plan that will avoid probate. Through trusts, transfer on death deeds, non-probate marital property agreements, beneficiary designations on assets, or a combination of these and other techniques, we have successfully guided thousands of families through the probate avoidance process.

Save Money by Avoiding Probate

Probate involves attorney fees and court costs and court formalities that can be avoided by proper planning. A proper estate plan will save money for your family. Our firm can prepare an entire estate plan to avoid probate for far less than what it costs to navigate probate. With some upfront effort, the costly probate process can be avoided, saving your family money at the time of death.

Probate Can be Stressful for the Family

Probate can give disgruntled heirs, spouses or children a court platform to cause issues and object to the court proceedings. Avoiding probate often eliminates unnecessary court battles and objections by a disgruntled or unhappily family member. Keeping an estate out of probate can be especially important where family members or interested persons will not inherit equally or will be “cut out” of your estate.

Probate is Public

Probate records are public record available for view by any curious person, friend, boyfriends of your children, ex-spouses, or other beneficiaries. These records include a list of all of your assets set forth in the Inventory, along with the will and probate accounting. By avoiding probate, records stay private, and out of public view.

Unpleasant Public Attention

When opening a probate, we receive letters from companies wanting to list, or buy and flip the real estate of the deceased. Search firms wondering if we need help locating interested persons or beneficiaries contact us. These companies found our details and those of the decedent by scanning probate files at the courthouse and probate notices in the local papers.

In a probate, we also must give notice to creditors in the paper. This notice lists the deceased person’s name and address and date of birth.

Giving notice to creditors is optional and often skipped in non-probate cases. Without probate, these public disclosers never take place or are optional.

Probate Involves Time and Delay

The probate notice to creditor requirement includes a four-month creditor claim period. Most creditors have four months from the publication of the notice to file claims. If known creditors are not notified in writing that they can file a claim, they could still file a claim after the four-month period.

Even a simple and uncontested probate will last many months – typically about a year. Moreover, probate results in a delay in the appointment of the executor, referred to as the personal representative in Wisconsin.

Where families are not cooperative, delays in the appointment of a personal representative can take weeks or even months. Without probate, a trustee can take over without court involvement.

Probate involves many steps before final distributions take place and the probate can be closed out: inventory of probate assets, formal accountings, and tax clearance from the Wisconsin Department of Revenue.

The Case for Probate

While we generally advise clients to avoid probate, doing so is not a must for everyone. Sometimes probate and the probate process has advantages. A possible advantage of an estate plan that does not avoid probate is that it can cost less upfront.

Let’s Talk about Your Estate Plan

As experienced probate attorneys, we know how to efficiently and cost effectively avoid probate for our clients. Whether avoiding probate is advisable or a goal, we can assist with a proper estate plan to avoid probate and save money, time and help preserve family relationships.We invite you to contact us today.

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