Three Common Mistakes Made When Trying to Avoid Probate

March 16, 2023
Brad Galbraith, Esq.

When you pass away would you like your family to not have to experience probate? Have you heard that probate can take a long time and be costly? What happens if you make a mistake with your estate planning and your estate ends up being probated? Did you know that probate procedures can even vary based on the state that you live in? All of these are valid questions and concerns and we would like to address them in this blog.

As a law firm that practices in the states of Florida, North Carolina, and Indiana, we would ask you “Do you have an estate plan?” If your answer is yes, are you planning for your estate to not go through probate when you pass away? It is excellent that you have an estate plan with a last will and testament. However, it is a mistake to think that the fact that you have a will does not, by itself, allow your estate to avoid probate.

Did you know that your last will and testament is a set of instructions for your personal representative, who was chosen by you when you created your will? Your will informs your personal representative on how to distribute all of your assets, which may include a house, a vehicle, bank or brokerage accounts or personal items. Even though you have written down instructions in your will, do not make the mistake of thinking that the assets may not then be subject to probate. They will be. In fact, your personal representative, referred to as an executor or executrix in some states, will be required to probate your will and this could possibly take time and money from your estate.

If your goal is to avoid probate and not make any mistakes, you should consider other estate planning tools. One of the other planning tools you might want to consider is a trust.  We recommend that you meet with your estate planning attorney so that he may advise you. Your attorney may recommend that you create a revocable trust to avoid putting your estate through probate. Upon completion of your revocable trust you can put all your assets into the trust. However, be mindful that your work may not be done and in fact you may not avoid probate. Here is why.  If there are any changes in your assets, they must be reflected in your trust! For example, you may sell some assets and acquire some assets but the mistake happens when you forget to put your new assets into your trust. Beware, this is a very common mistake! Know that only the assets in your trust will avoid probate. Any other assets you may have acquired but mistakenly forgot to put into the trust will have to go through probate. Another common mistake is in regard to changes in your family not reflected in your trust. Births, deaths and even divorce may impact your trust. The key to avoiding probate with your revocable trust is to update annually. We highly recommend annually updating your trust and estate plan.

Finally, another common mistake is that the information in your will and in your trust does not match. If the information in your will does not match the terms of your trust document, then your trust document may prevail. If there are any inconsistencies they may have to be reviewed by a probate court. Again, the key is to annually update all your estate planning documents.

We know this blog may raise more questions than it answers. For more information about this or other planning options and how they might work for you and your family, please call our office to schedule a time to discuss this. Bear in mind, when choosing an attorney, it is important to find a legal professional who specializes in your specific legal needs. As a law firm that serves our clients in three states, we understand the unique challenges that state laws can pose. We are here to help you now, and in the future in the states of Florida, North Carolina, and Indiana.

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