Page 46 - Senior Link Magazine Spring 2022 - Online Magazine

SENIOR RESOURCES

To Probate

or Not

to Probate

by Lee Franks

n my practice, estate planning clients often ask
me whether it is a good idea to avoid probate.
IThey may have done some research on their
own, or maybe a friend or family member has told
them that they should keep away from probate to
avoid the related expense, hassle, or publicity. Like
many legal questions, the answer depends on a
person’s circumstances and goals. A short column
like this one cannot hope to address all the relevant
issues and available alternatives, but it could at least
identify some of the factors a client might consider court, ensures that the will is valid and names a
when deciding whether to avoid probate. personal representative to act for the decedent. If
the decedent did not have a will, the court names a
We should start with a general understanding of personal representative and identifies the decedent’s
probate. A general definition of probate might be the heirs and their respective shares. In either case, the
process of transferring a decedent’s probate estate personal representative files an inventory of the
to its new owners. A person’s estate is everything probate estate, or an affidavit in lieu of the inventory,
he or she owns in whole or in part: vehicles, cars, with the court, pays the decedent’s debts, and if
accounts, furniture, real estate, clothes, personal anything is left over distributes the remainder to the
effects, etc. The probate estate refers to the portion of beneficiaries of the decedent’s will, if there was one,
a person’s estate still owned by the person even after or distributes the remainder to the decedent’s heirs if
his or her death. If the person made arrangements by the decedent had no will.
contract to have certain property pass immediately
upon death, then that property is not part of the So, if a person’s entire estate was owned by a trust
probate estate. Examples include making beneficiary or contractually passed to the new owners upon the
designations on cash and investment accounts or person’s death, probate would not be necessary.
life insurance or even vehicles. Significantly, if the A trust, by the terms of the agreement creating
person created a trust and transferred ownership it, distributes property to the trust beneficiaries,
of property from himself or herself to the trust, that and property subject to beneficiary designations
property is not part of the probate estate either. is distributed directly to those beneficiaries upon
the person’s death. That is how one avoids probate
Sticking with the decedent’s probate estate, if the – using a trust and beneficiary designations to
decedent had a will, a court, usually the local county eliminate the probate estate, but it does not answer

46 Lubbock Senior Link