Avoiding Probate

Avoiding Probate through Estate Planning

As we’re settling in to the New Year with our New Year’s resolutions already either forgotten or (hopefully) regularly scheduled and being followed, I have a challenge for all of my readers: no matter your level of wealth or marital status, you should have in place at least the basics of an estate plan, thereby avoiding probate.

Last Will and Testament

Known simply as a Will, this document appoints a personal representative to administer your estate on death, appoints guardians of minor children, if any, and designates how assets are to be distributed on death. The Will is particularly important if you have minor children because if you don’t nominate a guardian, the Courts will choose one (and it may not be the person you would choose). Having a Will in place is a good way of avoiding probate, which means your wishes will be followed instead of what the Courts decide.

Living Will

This is also known as a health directive, and states your wishes for end of life medical care if you are in a vegetative state or otherwise not likely to recover from your illness or injury.

Health Care Power of Attorney

This is where you designate the names of your agents to make your medical care decisions if you can’t make them for yourself. If you don’t designate a health care agent, the Probate Court will need to appoint a guardian to make your health care decisions (known as living probate).

Mental Health Care Power of Attorney

This is the same as health care power, but it deals with mental health care options.

Financial (Durable) Power of Attorney

This document appoints an agent to handle your financial and business affairs if you become incapacitated. The “durable” term means that the power is effective notwithstanding incapacity. Without this power, the Probate Court will need to appoint a Conservator in the event of incapacity.

Avoiding Probate

While Avoiding Probate should not be your first and only consideration when estate planning, it is an important concern if you want your heirs to more easily navigate through the process of your estate while they are also grieving. There are many other options which would depend on the size of an estate, ages of children, protections needed for heirs, etc., but everyone should start with the basics.

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