5 Reasons to Avoid Probate — and How to Do It

You’ve probably heard the word “probate” before, and if you have, it likely was not discussed in a positive light. Attorneys and other professionals often speak of the advantages of avoiding probate, but why, exactly, would a person want to avoid probate? After all, isn’t probate just another of those unpleasant things in life that we all have to do, like taxes? While probate is not always entirely unavoidable, it is possible to design your estate plan in such a way as to avoid it as much as you can, and an experienced Springfield probate lawyer can show you how. 

1. It Is Slow 

Probate is an official legal process that can take a while to complete. The exact amount of time probate will take varies by estate but typically takes about one year to 18 months in Missouri. Factors that can influence the probate timeline include the number and type of assets in the estate, the number of beneficiaries, the amount of debt associated with the estate, family disputes, and the probate court’s schedule, among others. 

The probate process in Missouri generally proceeds as follows: 

1. Filing of petition to open probate: An interested party files a petition with the court to open probate. 
2. Appointment of personal representative: If there is a will present, the court typically appoints the person named in the will. If there is not a will, the court will appoint a personal representative. 
3. Inventory and appraisal of assets: The personal representative identifies, inventories, and appraises the assets of the estate. 
4. Notification of creditors: The personal representative publishes a notice to creditors in the local newspaper. The creditors then have six months to file claims against the estate. 
5. Payment of debts and taxes: The personal representative pays the estate’s debts, which can include funeral expenses, outstanding bills, and taxes. 
6. Distribution of assets: The personal representative distributes the remaining assets of the estate to the beneficiaries as outlined in the will.
7. Closing of the estate: The personal representative presents a final accounting to the court and closes the estate.

As you can see, navigating the probate process is not only complex and time-consuming, but often a great burden of responsibility for the estate’s personal representative. 

2. It Can Be Expensive 

Debts and taxes are not the only liabilities that can reduce the value of an estate. The probate process itself can also divert money away from the decedent’s beneficiaries. Probate costs vary from estate to estate, and Missouri uses a fee schedule for calculating personal representative and attorney fees, but some of the most common fees include: 

• Court fees: The fees the probate court charges for probate proceedings. (Greene County’s probate court fees can be found here.)
• Personal representative fees: The fees to which the estate’s personal representative is entitled for handling the probate process
• Attorney fees: The fees the estate’s probate attorney charges to provide legal counsel
• Accounting and appraisal fees: The fees financial professionals charge if any of the estate’s assets need to be appraised

Probate fees can put a significant financial dent in an estate, which is why you should consider speaking to our Springfield probate lawyers if you’d like to protect your wealth by minimizing probate.  

3. It Is Not Private 

Probate is a public process, meaning that anyone can access details of the estate. This includes the will itself, the decedent’s assets, the beneficiaries and how much they receive, and the estate’s debts. The lack of privacy in the probate process can lead to unwanted attention from creditors, scammers, nosy neighbors, and estranged or “long-lost” family members.    

4. It Is Ripe for Litigation 

No estate planning tool is free of the risk of legal challenges. However, the probate process may provide more fertile ground for litigation because it is a long, stressful, multi-step endeavor that can create friction between family members and lead to conflict. For example, where a will is involved, a dissatisfied beneficiary may contest the will by alleging that another beneficiary unduly influenced the decedent to provide more for them. If you’re concerned that your estate plan might be derailed by a will contest, please consider speaking to our Springfield probate lawyers. 

5. It Can Result in Multi-State Complications 

If the decedent owned property in multiple states, the estate may have to undergo probate in more than one state. These types of proceedings are known as “ancillary probate” and can add another layer of complexity to an already complicated process. 

How to Avoid Probate

If probate sounds like something you’d rather avoid, the good news is that you have several tools available to you: 

Use Trusts 

Trusts are one of the most common and effective strategies to avoid probate. When you execute a trust, you transfer property to another person (the trustee) to be held and managed for the benefit of a third person (the beneficiary). Trusts — including both revocable trusts and irrevocable trusts — operate outside the probate system, thus allowing you to bypass the courts and transfer assets immediately upon your death to your beneficiaries. 

Use Joint Ownership 

Another popular strategy for circumventing probate is to use joint ownership (also known as joint tenancy with right of survivorship). Joint ownership arises when two people acquire real estate or personal property together. Property owned in a joint tenancy with the right of survivorship automatically passes to the surviving owner when one dies, thereby bypassing probate.  

Use Pay-on-Death and Transfer-on-Death Designations 

Missouri law allows for “pay-on-death” (POD) designations for bank accounts and “transfer-on-death” (TOD) designations for real property and personal property. Both POD and TOD allow the owner of the subject property to transfer it to another person automatically upon their death. One of the advantages of POD and TOD over joint ownership is that they do not require shared ownership of the covered assets during the grantor’s life. 

Craft an Effective Probate Avoidance Strategy With Help From Our Springfield Probate Lawyers 

Probate is not a foregone conclusion. There are several options available that can help you minimize the burden of probate on your estate, but crafting an effective probate avoidance strategy requires an individualized assessment of your needs. To get started, please contact the Springfield probate lawyers at the LifeGen Law Group by calling 417-823-9898 or using our online contact form.