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What is Probate and How can I Avoid it?

There are many horror stories about probate. Everyone seems to have a story about someone they know who had a will contest or whose family was fractured because they fought about the property of a loved one. No one wants to go through this or for their family to go through this after they are gone. Avoiding probate, therefore, is a common goal of estate planning.

Probate is the legal process through which the estate of a deceased person is distributed. This can be either in accordance with a will or, if a person dies without a will, in accordance with the relevant statutes. Probate takes a minimum of six months if there is real property, even when there are no contested issues. It can, however, take much longer if there are any complications. Probate in Kentucky is relatively inexpensive compared to many other states, but the cost can add up quickly in some cases, particularly if there is any sort of contested issue.

The process is fairly straightforward, and does not differ very much whether the person dies with a will or intestate, without a will. An executor is appointed to oversee the probate process and an administrator is appointed for the same purpose if there is no will. The primary difference in these two is that an executor is named in a will, whereas anyone can petition to be the administrator of an estate. Upon appointment by a judge, the executor or administrator must file inventories with the Court. After that, they settle the estate in accordance with a will or by statute. Periodic inventories may need to be filed depending upon the duration of the case. Of course, everything can be complicated by any sort of contest.

Planning ahead can help alleviate any confusion or complications that may occur during the probate process. A will is the simplest document to have in place to deal with probate. A will allows a person to specify who they want as their executor. This does not necessarily have to be a family member, as long as it is someone who is trusted and responsible. A will also allows a person to designate exactly where their possessions will go and how their estate will be distributed upon their death.

Many people wish to avoid probate altogether. In that case, the best option is often to create a trust. A revocable, or living, trust, is used to avoid probate. Assets are placed into the trust and distributed according to the creator's wishes from there, meaning probate is not necessary. An irrevocable trust, however, will avoid probate and can also protect assets while allowing the person to qualify for Medicaid.

There are other ways to avoid probate as well, such as transferring assets or creating payable on death accounts. These solutions can have unforeseen complications, however, and should only be done after careful consideration and consultation with a qualified elder law attorney.

Probate can be complicated, but it does not have to be. Many of its difficulties can be mitigated with proper planning.

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Elizabethtown, KY 42701

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