What if there is a dispute between people I have left bequests to under my will?
Usually a well-prepared will can avoid disputes between the people named in such will. However, if a dispute does occur, the Personal Representative is the one who has the power to settle such disputes. If the disputes cannot be resolved, it may be necessary to go before the probate judge to have the dispute resolved. If legal proceedings take place that involve appeals and litigation, the probate cost becomes very expensive.
Is there any way, then, to avoid probate?
There are a few ways to avoid the probate process. The first is to have all assets, including real estate, personal property, bank accounts, and other tangible and intangible assets held in joint tenancy with another person. With joint tenancy, the property would automatically pass to the surviving joint owner upon the death of the other joint owner. In most cases, if the property passes to the surviving joint owner, there is usually no need to probate the estate. However, the laws in each state differ, and therefore, it is very important to consult with an attorney about the probate process and its relationship to joint ownership.
It is important to know that probate cannot be avoided forever. For example, let's assume a case where Joe Jones and Jane Jones have been married for many years and have two children. Assume that they both have wills and own all of their property jointly. Let's assume further that Joe Jones passes away and all property passes to Jane Jones with no estate to probate. However, if Jane Jones does not remarry or does not put her property in joint ownership with her children, when she passes away, her estate will have to be probated.
It is also important to recognize that in order to avoid probate, everything you own must be in joint tenancy. That means that you would need to make separate arrangements while you are alive for funeral and burial expenses. And remember, placing everything into joint tenancy does not give you the option of leaving gifts to your family and friends through a will.
Another way to avoid probate is by setting up a revocable living trust. With a living trust, you essentially transfer all of your assets into a trust instrument and if you become incapacitated or pass away, the court process known as probate usually does not apply. Furthermore, you do not lose control of your assets during your lifetime. With a revocable living trust, you would name yourself as trustee or co-trustee and a successor trustee in the event that you should become incapacitated or die.
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