Written by attorney James P. Frederick

What is the MINIMUM amount of estate planning I can get by with to avoid probate?

EVERY person should have a General Durable Power of Attorney in place that names someone to handle their financial affairs and medical treatment decisions, in the event he or she becomes incapacitated. If someone does not have this document, then probate proceedings will be necessary to appoint a guardian and/or conservator. (This is sometimes referred to as "Living probate.") The Power of Attorney is an inexpensive way to avoid these costly and time-consuming proceedings.

When most people think of "probate", they think of decedent's estates. The purpose of probate in this context is to give someone, the "personal representative" or "executor", legal authority to transfer title to a deceased person's assets.

How to avoid the need for probate depends on your assets and your objectives. If you are married with minor children, then the answer is different than it would be if you were single or married but with children who are adults.

If there are minor children involved, then I believe the safest way to protect their interests (and to avoid probate), is to have a Living (Revocable) Trust in place.

If there are no minor children involved, then the next question is what types of assets you have. If there is no real estate involved, then you can generally designate beneficiaries on any other assets. This is a safe and inexpensive way to avoid probate.

If there IS real estate involved, we usually recommend a certain type of "quit claim deed" known as a "Ladybird Deed." This kind of deed allows the owner to maintain full control over the real estate during lifetime, but it designates the owners of the property upon death. The cost of preparing this deed is relatively nominal and allows for probate avoidance in much the same way as a trust would.

Ninety-five percent of all clients can eliminate the need for probate in this manner, at a cost of less than $500.

Additional resources provided by the author

The author of this article has written a book on estate planning and probate avoidance, which is available upon request by email. The book discusses common planning techniques and pitfalls.

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