Wills are often misunderstood and the relatives of those who have a Will (expecting the will would keep the estate out of Probate) are frequently disappointed with the process after losing a loved one.
If you or your loved one is the surviving spouse and their home was vested as the ” Sole and Separate” property of the deceased spouse, they may have to go through Probate. EVEN IF, there is a Will that Deeds the home to the widow/widower upon death, it is still not enough.
A Will simply directs a Probate Judge as to the intention of the person writing it and by its own definition means the estate must go through probate before it can be dealt with. This is a little know fact of Wills.
Sending an estate through Probate is a surefire way to ensure that the wealth of the estate lands squarely in the pockets of the Probate Attorney. Probate is a COSTLY and drawn-out process.
There are three common ways to eliminate the probate process.
- Vest the property correctly (Contact us for appropriate vesting information)
- Create a Living Trust
- The fairly NEW Transfer On Death Deed (as of Jan 2016!) in California and a few other states.
Vesting is tricky and can cause conflict with surviving family.
The best way to avoid Probate is by forming a Living Trust but Estate Planning Attorney’s are not cheap but if you have the funds, we can recommend a few very capable attorneys for you to interview. In the interim, fall back on the Transfer On Death Deed as it is much more cost effective and can be your safety net until you create a thorough trust. There are some strict instructions and timelines to follow in executing and recording the TOD Deed but it is still easier, cheaper, and quicker than the Living Trust. Be sure to contact us or an estate attorney for more resources on this. It is important to remember, the TOD Deed is ONLY empowered upon death so rights and ownership remains untouched until the death enacts it.
There are downsides to the TOD Deed that make it less desirable compared to the Living Trust. For example: If the estate owner files a TOD Deed to make one of their children the beneficiary upon their death and the parent later becomes incapacitated, they will be unable to make changes to the TOD Deed. This can be troublesome if the family’s circumstance change in a manner that impacts the beneficiary (perhaps the death of the beneficiary child), the home will fall into probate upon the death of the estate owner since the beneficiary is already deceased.
There are several examples where the TOD Deed does not create contingency plans should certain unforeseen changes occur. But while the Living Trust is being drawn, researched, or funds to pay for it are being saved, it is a valuable fallback.
If you have questions regarding your property vesting and would like help understanding your options, contact NextHome Coastal and we can help you locate an Estate Attorney or other resources to protect your estate. DON’T WAIT!