The grief and adjustment after losing a loved one is hard on the strongest of families. Yet it is frequently compounded by complex legal issues, especially if the deceased did not plan ahead for the distribution of their assets.
Planning ahead can defuse this fraught situation with the help of an experienced estate planning attorney. Consulted in advance, an estate expert can explain the tools and steps necessary to create an estate plan that avoids the delays, fees, and public scrutiny of probate court after a loved one’s death.
Avoiding Probate to Ease Your Family’s Grief
Probate is a process of state court that oversees the process of settling estates when people die with or without a will. Probate is necessary when a person dies with assets, like a house, bank account, or vehicle, held in their name alone. Court officers oversee the legal distribution of the deceased’s assets among lawful heirs. The process can take a year, is expensive, and probate matters become part of the public record for any interested person to see.
Families that have estrangement issues may seek to avoid probate to reduce opportunities for heirs or friends to legally challenge inheritances. When properly executed, estate planning tools like trusts and beneficiary designations may reduce opportunities for among family members.
Steps and Planning Tools Necessary to Avoid Probate
By taking steps in estate planning, it’s possible to avoid the bulk of probate delays and costs. This involves creating legal strategies that direct how your assets are distributed after you die. These tools include:
- Trusts
- Beneficiary designations
- Property arrangements
Step one: Create a Revocable Living Trust
A trust is a financial entity that becomes the owner of your assets like real estate, bank or investment accounts, and personal property. A revocable trust allows you to access and use the assets it contains while you are alive, but upon your death it delivers those assets to your heirs without the intervention of probate court. You must take specific steps to fund the trust (such as retitling assets) as well as naming a trustee to manage it upon your death.
Step two: Create Beneficiary Designations and Payment On Death Accounts
Review your life insurance, investment account, retirement account, and bank account documents to make sure they are assigned to one or more beneficiaries upon your death. This allows the named family member direct and immediate access to the funds for purposes like maintaining your property until it is sold or caring for your surviving spouse. Even if you have a will, a beneficiary designation supersedes the heirs named in your will and bypasses probate court.
Step three: Retitle Property to Joint Ownership
When properties are held in joint ownership with right of survivorship titles, transfer of the property is not handled by the probate court. In this situation, the co-owner automatically takes full ownership upon the death of their joint owner. The same automatic inheritance applies if a bank or investment account is titled as jointly owned with right of survivorship.
Additional Ways That Illinois Residents Can Avoid Probate
Illinois law has specific provisions through which state residents may inherit without the intervention of probate. These include:
- Transfer-on-Death (TOD) Instruments for Real Estate. This allows ownership to transfer automatically to an heir upon the owner’s death. It is better in some ways than joint ownership because TOD protects the interests of the primary owner by shielding it from certain creditor exposure that arises from joint ownership.
- Small Estate Affidavit. If a person’s assets are modest and do not include real estate, it may qualify for Small Estate Affidavit to claim assets without opening a full probate case, simplifying and expediting the process.
Make Planning a Part of Your Legacy
Show your family members that you care by taking steps to plan the division of your estate. The attorneys at Legacy & Life Law Firm can walk you through the process of cementing your final wishes into legally enforceable estate tools. A clear plan will provide your family peace of mind.