You may have a large estate, one you believe would be followed by a lengthy and expensive probate. Probably, you’ve heard that people make mistakes of not doing estate planning and their survivors end up going through challenges during probate.
Now you’re wondering, does a will keep an estate from going through probate in Brooklyn? If I create a will, does that mean my assets wouldn’t go through the probate court?
The answer is a resounding NO! Wills do not avoid probate. In fact, wills necessitate probate.
How?
All wills in Brooklyn must be probated i.e. Validated
Once a person passes away leaving behind a will, their will must be taken to the probate court for validation. The court checks to see if the will is complaint to state laws of validity. If it is, then the court grants the executor named in the will to probate (or execute) and disburse the estate.
Estate here refers to those assets addressed in the will. And notably, only assets owned in the testator’s name alone without beneficiary designation can go through the will and probate court. For example, the car or house whose ownership document only contains your name.
What if there’s no will?
If there’s no will or the will is found to be invalid, probate may still take place if the decedent have assets in their name only without beneficiary designation.
When will probate not take place?
Estates valuing below $30,000 in Brooklyn will not go through probate. Instead, there is a smaller process for inheriting the assets in such an estate. This process is called small estate administration.
Notably, you can prevent your estate from going through probate by keeping your total personal assets owned in your name alone below $30,000. How do you accomplish that?
By holding other assets differently in such a way that they become untouchable by probate! These assets are known as non-probate assets.
Non-probate assets
Whether or not you have a will, the following assets will pass outside probate in Brooklyn:
- Life insurance – You most likely already named a beneficiary in your life insurance policy, so it’s useless naming another beneficiary of this same asset in your will. It may ultimately lead to discrepancy
- Retirement accounts, such as 401(k) – Also has a designated beneficiary
- Transfer-on-death bank accounts – has a designated beneficiary who the funds must go directly to when the owner dies
- Assets in a trust – assets kept in a trust will pass directly to the beneficiaries regardless of whether there is a will or not
- Real property held by joint tenancy with rights of survivorship – The property will go directly to your joint owner when you pass away regardless of what the will says.
Using a living trust to keep your estate from going through probate
A living trust is a more complex but highly advantageous asset transfer instrument. It is preferred over a will because of its capacity to avoid probate.
You hold assets in a trust by funding/transferring the asset ownership into the trust such that the trust becomes the owner. When you pass away, such assets will pass to the beneficiaries quickly and directly to the beneficiaries you have named in the trust.
One great thing about living trusts is that you can name yourself as the trustee and use the assets therein to your own benefit until you become incapacitated or deceased. Then, the successor trustee – who you should also name in the trust – will step up according to your laid down instructions.
It is sometimes not possible or advisable to transfer all your assets into a trust. But if you are able to transfer the more valuable ones into the trust, own your home by joint tenancy, and keep your funds in a transfer-on-death account, whatever probate assets are left in your estate may become minimal. And if your probate assets are less than $30,000 in Brooklyn, probate will not be conducted.
Get professional assistance with your estate planning
Looking towards avoiding probate in Brooklyn? Our experienced estate planning attorneys Brooklyn will help you implement estate planning strategies to achieve that.
Call our law office today.
