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Probate can be used strategically

For New Yorkers facing estate planning decisions, or dealing with wills made by others, probate can be an intimidating process. While probate court is often reviled as a venue for assets to be wasted through attorney fees and family infighting, it can actually have a place in well-considered estate planning. The key to a streamlined probate process is clarity and forethought.

When an asset passes to an heir through a will, it must go through probate. The process varies from state to state and sometimes from county to county. If assets are owned in more than one state, estate planning should include consideration of laws in each jurisdiction. Critics are correct to argue that probate can be a very expensive proposition when there is confusion about testamentary intent or legal cause to question mental clarity or undue influence. Many jurisdictions employ a multi-tiered approach to probate with smaller estates getting a more streamlined process to completion. Larger estates, which are the subject of more disputes, can involve protracted litigation and court-appointed administrators that substantially deplete estate assets.

Since probate is a public process, however, there are times in which enhanced scrutiny from a judge could be good for an estate. It's important to note that there are some assets that are excluded from the probate process by law. Among probate-exempt assets are most retirement accounts, annuities, jointly owned property and life insurance. Strategic planning can also make judicious use of trusts or other vehicles to avoid probate if desired.

Deciding whether to make strategic use of the probate process or to employ other estate planning tools can make a world of difference in whether an estate is quickly distributed or done so with cautious judicial oversight. Consulting with a qualified estate planning attorney can provide confidence and peace of mind regarding options and legal compliance.

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