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One of the main reasons people get their Estate Plan done is so they can avoid “Probate”. Most people are not sure what “Probate” is but generally know it is something to be avoided. This article explains what “Probate” is and shows two general types of Estate Plan that can be used to avoid Probate.
Explanation of Probate
Simply put, "Probate is a Court Process of transferring legal title to property from a person who has died to that person’s heirs or legatees.” Each state has their own laws about how this Probate Process is started and how it works.
The Probate Process is supervised by a court and includes:
Determining the validity of a Will
Naming an Executor or Administrator of the Estate
Gathering and Accounting for Assets of the Estate
Paying any debts that are owed by the Estate
Settling disputes over who inherits the Estate assets
Distributing the Assets to the Heirs/Legatees
The Probate Process will usually take at least 9 -12 months minimum (assuming there are no disputes or complications) before assets can be transferred to heirs. If there are disputes among family members or creditor issues then it can take years to get through. The costs of Probate vary and each case is different – but a simple Probate could cost $5000 minimum and if there are disputes are complicated issues to address – tens of thousands of dollars.
Determining if an Estate has to go through Probate
Not all Estates have to go through the Probate Process. Only assets considered “Probate Assets” are subject to the Probate Process.
Every asset that you own – whether it is real Estate; furniture; money in bank accounts; stocks, etc. is part of your “Estate”. From an Estate Planning standpoint – assets can be classified in one of two categories.
The first category is what I call the “Probate Assets” category. Probate Assets are assets that you own in your own name and that DO NOT AUTOMATICALLY transfer upon your death. For Example – if you have a bank account that is in your name only upon your death – that is a Probate asset. Another example is if you own real Estate in your name only – upon your death it is considered a “Probate Asset” because it does not automatically get transferred upon your death. For these types of assets – we have to look at someone’s Will or if there is no Will to Illinois Probate Law – to determine who inherits those assets. In order for Probate Assets to be transferred to the heirs, they generally have to go through the Probate Process first.
The second category of Assets are called “Non-Probate Assets.” Non-Probate Assets are assets that have beneficiary designations; assets that are Payable on Death Accounts, jointly owned accounts or assets that otherwise DO AUTOMATICALLY get transferred upon your death. Examples of these types of assets are: 1) Retirement Accounts (beneficiary designations); Life Insurance (beneficiary designation); jointly owned Bank accounts (Jointly Owned Property); Jointly Owned Real Estate (Jointly Owned Property). Because these assets automatically transfer upon death – they do not have to go through the Probate Process before they are transferred to heirs.
After you have classified all of your assets as either a “Probate Asset” or a “Non-Probate Asset” then we have to go to the next step to determine if your Estate will go through Probate – by applying the $100,000.00 Rule.
In Illinois, if you have more than $100,000 worth of Probate Assets that are personal property (all property that is not real Estate) that is classified as a Probate Asset – then your Estate has to go through the Court Probate Process. If you have any real Estate owned in your name only – then you generally have to go through Probate as well. If you have less than $100,000 of personal property that is considered a Probate Asset – then you can use what is called a “Small Estate Affidavit” to transfer that property to the heir and avoid Probate. There are various things you and your Estate Planning attorney would need to consider when determining if Probate should be filed. However, when doing an Estate Plan, most people want their heirs and family to not have to go through the time, expense and stress of Probate. That is why avoiding Probate is one of the top reasons why people see an attorney to do their Estate Plan.
Two Types of Estate Plans that Will Avoid Probate
I explain to clients that there are two different types of Estate Plans that we can use to have an Estate avoid Probate. The first type of Estate Plan is what I refer to as a “Will-Based Estate Plan.” The second type of Estate Plan is a “Trust-Based Estate Plan.”
Trust-Based Estate Plan: Any asset that is held by a Trust is a Non-Probate Asset. Trust-Based Estate Plans are used when someone creates a Revocable Living Trust and transfers enough of their “Probate” assets into it so that they are under the $100,000 Probate Asset Rule. Then when that person dies – the assets inside of the Trust will be distributed per the terms of the Trust. If there are assets outside of the Trust and still owned by that individual – then so long as those assets are less than $100,000 in total – we can use a Small Estate Affidavit to transfer those assets to the heirs without having to go through Probate. Trusts are very powerful Estate Planning tools that have a lot of other benefits than avoiding Probate. People with over $1,000,000 in assets or those with creditor issues or complex family situations should consider using a Trust as part of their Estate Plan.
Will-Based Estate Plan: Sometimes using a Trust for Estate Planning can become overkill and backfire for some people. Some people don’t have complicated family issues; don’t have creditor issues; and don’t have enough assets to justify needing a Trust. Some people value simplicity of Estate Planning over anything else. For these clients – a Will-Based Estate Plan may take care of their needs and still avoid Probate. We do this by evaluating all of the assets in their Estate and finding ways we can reclassify them as a “Non-Probate Assets – without using a Trust. For example – someone may be able to reclassify a bank account as a “Payable on Death Account” – which then makes that account a “Non-Probate Asset”. Also another technique we use to reclassify a Probate asset into a Non-Probate Assets is to use what is called a “Transfer on Death Instrument” aka “TODI” for short to name beneficiaries for a client’s personal residence.
Conclusion
Every Estate Plan is different. Everyone has different family situations; different assets; and different ideas about their Estate Plan. Also, even though most time avoiding Probate is a good thing, sometimes there are very good reasons to go through Probate. It is best to have an experienced Estate Planning attorney review your Estate and determine the best way you can avoid Probate and fulfill any other Estate Planning goals you may have.
The Ritchie Law Office, Ltd. prides itself on being an approachable and safe place for people to come to learn more about Estate Planning. To learn more about our Estate Planning process or to schedule an initial consultation call our office at (309) 662-7000 x1.
This article is a service of Attorney Chad A. Ritchie and the Ritchie Law Office, Ltd.
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