Estate Planning Challenges and Techniques

Probate is the court proceeding that concludes all the financial matters of the person who has died. The probate court makes sure that the person’s debts get paid out of the estate’s available assets. If there is a will, the court reviews it and rules on its validity. Finally, it changes the title of all assets from the name of the deceased to the names of the beneficiaries listed in the will.

Of course, all the court’s “help” comes at a price. Attorney fees, appraisal fees, personal representative fees, and court costs all add up to take a bite out of the estate. Depending on the state, the probate and administrative fees can eat up five to ten percent of the gross estate.

Not only is probate costly in money, but it is also costly in the amount of time it takes to complete the process. The average probate can take from nine months to two years. During that time your heirs will have to wait to receive their complete inheritance until, at last, the probate is concluded.

While we all like to think of our affairs as being a private matter, the probate process airs all our laundry for anyone to see. Probate is a public process. This means that anyone who chooses, can go to the courthouse and see exactly how much you had and who you left it to. Many salesmen use the probate files to obtain leads. Kind of twisted don’t you think?

The tax man cometh. Even in death the long arm of the government, both state and federal want a piece of what you have accumulated. On large estates the government will take as much as 60 percent of the estate!

By transferring your assets, for example real property or stocks, into a form of joint ownership, after the death of one of those individuals the other takes sole title to the property without the property having to pass through the probate court. Think of both individuals, or tenants, owning 100% of the asset during their lifetime, and therefore upon the death of one of the tenants it is not necessary to probate the asset to determine the ownership of the asset. When one joint tenant dies, the surviving joint tenant automatically receives the title without probate delay. All that usually is necessary to clear the title is for the survivor to file a certified copy of the death certificate and an affidavit of survivorship. However, joint tenancy has serious drawbacks for the survivor, including (a) being subject to claims by creditors of the deceased joint tenant, (b) termination of the joint tenancy if one joint tenant deeds his or her share to a third party or to himself or herself as a tenant in common, (c) forced sale in a partition lawsuit by one of the joint tenants (d) the fact that each share becomes subject to the will when all joint tenants died at the same time, and (e) not immune from estate taxes.

The most used method of formal estate planning is the simple will. A will directs the state through and Personal Administrator to transfer ownership in the deceased persons property to the people indicated in the will. Married couples often use reciprocal wills initially leaving the property outright to each other, then to children or other beneficiaries. However, there is the mandatory requirement, that upon the death of each spouse, the estate must be probated. By definition, a will is the document which must be probated, with all the inherent cost, time delays and complexities involved.