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August 1, 2015

Probate: 101

After death, an individual may leave behind personal property, money, or other more complex assets.  These assets make up the deceased person’s estate.  After that person dies, his/her estate may pass through probate if he or she did not plan the estate accordingly with a skillful estate planning attorney.  Probate refers to a required legal process wherein the assets of a deceased person are fully accounted for, taxed as necessary, used to pay debts, and transferred to heirs.

Drawbacks of Probate

Probate can take a long time.  If the estate of the deceased is large, it will take longer in probate to process.  Even smaller, less complex estates consisting of any interest in real estate or other assets worth more than $25,000 will take a minimum of 12 months to through probate while other estates can take years.  If you are hiring an attorney, more time in the probate process means more money in fees.  If you are an heir or beneficiary, more time in the probate process means that you will not receive what your deceased loved one wanted you to have for months or even years.  For close family members, heirs, and beneficiaries who may have experienced financial loss associated with the passing of the deceased, this could mean that the funds they need from the estate may not be accessible to them until the estate completes the probate process.

Probate costs more money than any of the alternatives.  The costs of probate and the expenses associated with a successful probate proceeding can accumulate over time and can decrease the value of the estate, as the estate will be used to cover them.  These costs can include executor or administrator fees, attorney’s fees, court costs/filing costs, asset management costs, and many others.  If an estate is in probate for too long, depending on the size, value, and costs of the estate, it could decrease in value significantly by the end of the probate process, leaving very little left over for the heirs and beneficiaries.

Avoiding the Probate Process

South Carolina, like many states, provides alternative processes for certain types of estates to avoid formal probate.  South Carolina provides alternatives for small estates under $25,000 with no real property.  This alternative is called a small estate probate process.

Those wishing to avoid the probate process can, with the help of an experienced attorney, devise and execute an estate plan that will transfer their assets through living/revocable trust agreements and other instruments.  Leaving assets in the form of life insurance policies and retirement accounts that name beneficiaries themselves will also avoid the probate process, as they do not pass through probate.  If titled correctly, jointly titled property can also be another way to transfer real estate without the probate process.  However, it is a mistake to rely on beneficiary designations and jointly titled assets alone: such strategies do not adequately handle contingencies (e.g., what happens at the death of the surviving spouse) and they rob those that rely on that strategy from the ability to “asset protect” or otherwise give beneficial structure to the gifts given to the survivors.

Anyone wishing to avoid or decrease the probate process should consider estate planning.  This could help you ensure that your intended beneficiaries and heirs receive more of what you want them to have, sooner.  Allow Anderson Law Firm to help you leave the most money you can to your loved ones without the costs and inconveniences of the probate process.