There is nothing inherently bad about probate. Simply put, probate is the legal, public process that brings closure to our affairs when we die. Although most states offer expedited processes depending upon the level of assets involved, probate often takes some time. Here are ways to by-pass probate if time and privacy are priorities.
By-Passing Probate
When there is a will, it must be filed in probate court following the relevant state protocols. The designated personal representative, typically referred to as the executor, must then follow the court-supervised process to settle debts (such as taxes) before assets are distributed. If there is no will, the court designates a representative, often referred to as an administrator, to manage the affairs of the deceased—and assets are ultimately distributed following the state laws of intestacy.
Probate usually takes a year or so, based on the circumstances. Ideally, snags like unpaid taxes, debts, conflicts among family members or contested wills are avoided—and so too is the need for probate litigation. During probate, It is not uncommon for courts to require a probate bond. The terminology for probate bonds varies by state and circumstance, but the purpose is essentially the same: probate bonds protect the interests of the estate and its beneficiaries in accordance with state law. When the court requires a probate bond, it is critical to meet the deadline and avoid delays. That’s why Colonial Surety makes it easy and speedy to obtain every type of probate bond with our direct, digital service: just get a quote online, fill out the information, and enter a payment method. The bond can even be e-filed right from court.
By-Passing Probate
Estate law expert, Benjamin Tiefenback of Sands Anderson points out that if speed and privacy are important, careful estate planning means that probate can be by-passed, using tactics such as:
Beneficiary Designations – Financial assets and business interests can be passed outside of probate by beneficiary designations. There are downsides to using beneficiary designations, but they can also greatly simplify asset transfers on death.
Transfer On Death Deeds – Real estate can be passed outside of probate by a transfer on dead (TOD) deed. This is a relatively new tool, less than a decade old in the Commonwealth of Virginia. A TOD deed works very similarly to a beneficiary designation, transferring a piece of real estate quickly and easily on death.
Trusts – The cornerstone of modern estate planning is the trust. A trust is very similar to a will, but crucially, it passes assets outside of probate. This saves time, money, and stress for your loved ones, and can also provide extremely powerful protection against threats such as divorce and death taxes
Learn more about establishing a trust here. Ultimately, whether your estate plan involves a will, a trust or a combination, remember that a key to leaving affairs well organized for loved ones is the careful designation and preparation of the fiduciary who will oversee the administration of your estate. These tips on choosing an executor or trustee may be helpful.
Good To Know
The words probate and probate litigation are often confused. Most families will work through their state’s probate process to settle the affairs of the deceased. On the other hand, most families will avoid probate litigation. As Kennedy & Rusham Law explains:
The term, “probate litigation” refers to lawsuits filed in probate court — and the legal proceedings associated with resolving these lawsuits. Probate litigation may include:
- Contesting a will
- Disputing a trust
- Highlighting undue influence
- Disproving false claims from creditors
- Removing an executor for breaching their fiduciary duties
Probate Bonds?
Colonial Surety helps attorneys and their clients obtain fiduciary and court bonds quickly, and easily with our direct, online bond service. We also offer attorneys complimentary business support services via The Partnership Account®.
Lawyers anywhere in the country can sign up for The Partnership Account® for Attorneys in minutes, and immediately gain direct access to our complete online portfolio of court and fiduciary bonds–and a private dashboard. Use it to quickly and efficiently obtain, track, manage and even e-file all the bonds needed to keep your clients and cases moving forward.
Colonial’s online bond portfolio includes: administrator, estate, executor, guardian, personal representative, probate, trustee and conservator. We also have: appeal, supersedeas, injunction, replevin and receiver bonds—and more.
Yes, please: The Partnership Account for Attorneys®
Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.