Avoiding probate litigation depends on a variety of factors, such as how well the family members get along, and the types (and amounts) of assets in dispute. Plain and simple, the fewer assets that pass through probate, the less likely there will be a probate contest. An experienced Maryville probate lawyer explains how the following options may reduce the size of your estate while also meeting your goals for distributing your assets when you die.
So what are some things you can do to help your loved ones avoid probate litigation?
- Revocable Living Trust. This legal document transfers assets to a trustee on behalf of a beneficiary such as a spouse or a child. Assets in a revocable living trust do not go through probate. The testator can revoke the trust up the time of his/her death.
- Irrevocable living trusts. These legal documents are created while the senior or other person is alive. Once they are created the senior or other person can’t change the terms of the trust.
- Retitling of assets. Assets, such as homes, that are properly titled can pass directly to the other people listed on the title document (such as a deed) without going through probate. The following ways of titling property can be used to transfer ownership outside of probate:
- Joint tenancy with right of survivorship. Here, multiple people (or entities) own the property. When one person dies, the other joint tenants who survive become the full owners of the property.
- Tenancy by the entirety. This is similar to joint tenancy but it’s reserved for married couples (or possibly same-sex partners).
- Pay-on-death financial accounts. A testator can convert their bank accounts and retirement accounts to pay-on-death accounts. The testator essentially just needs to declare a beneficiary who will receive the bank account funds or retirement accounts funds when they die. The funds then belong to the beneficiary without the need to go through probate. A skilled Tennessee estate planning lawyer can explain which assets can be converted to payable-on-death accounts.
- Gifts. Anyone can make a gift of their property to anyone else before they die. The plus side of a gift is that you avoid probate of the gifted property. The downside is that you lose control of the property. There also may be tax consequences for making a gift.
Ways to avoid probate litigation other than reducing the size of your probate estate
Any property that goes through probate should be transferred through the creation of a will. A will determines:
- Who gets what assets. In most cases, the spouse and children are the beneficiaries but there are many exceptions.
- How the assets should be handled. There can be directions for how any property should be sold
- Transfer of business interests. Any business ownership succession issues that aren’t determined by partnership agreements or other agreements can be set forth in the will
- Who the heirs are. The will can also clarify why some people weren’t designated beneficiaries
- Who the executor of the estate is. The executor manages the estate until all the assets are distributed.
A well-crafted will can help resolve many disputes before they occur. An experienced estate lawyer can also explain what steps can be taken such as the use of videos to prove the testator had testamentary capacity and that there was no undue influence.
Experience matters. At Shepherd & Long, PC, our Maryville estate lawyers advise residents of East Tennessee about which documents can be used to plan their estates and to reduce the risk of litigation after they pass on. For years, we’ve helped clients gain peace of mind of knowing their estate will be handled according to their wishes. To speak with a Maryville estate and probate lawyer, call us 865.982.8060 or fill out our contact form to schedule a consultation.