Probate Problems: How to Steer Clear of Probate Court

November 2017

Many people have been told that it is important for people to “avoid probate.” But just because people may have heard that term, doesn’t mean they know exactly what probate means, why it can be a problem or how to successfully avoid it. In this post, we will take a look at the term probate to understand exactly what it means, and what the process includes.

What is Probate?

The term probate most literally means “to prove” a will. Today it covers the entire legal process necessary to settle a person’s estate after they die. The appointed representative (usually a family member) opens the probate case in court. With the court’s help, they will work through all of the financial business that the decedent left behind. For example, probate includes disposing of personal property, money, real property or anything else that the deceased owned at the time of their death. Probate also deals with any debts that were in existence at the time of death.

Why is Probate Such a Negative Thing?

Probate is not inherently evil. It is simply a system that was created to oversee the way estates are handled. However, there is some truth when people say that probate should be avoided, if possible. Some of these cons are listed below.

  • A Lack of Privacy: Probate cases are filed in the court and are in the public record. If for any reason a person wants to maintain a sense of privacy after they die, it could be a good idea to avoid probating the estate in court. Famous people or other potentially controversial people usually don’t want their financial and family affairs dragged out into the open.
  •  Probate Can Create Family Disagreements: One reason that wills and estates are probated in court is to allow interested persons the chance to represent their own claim on the estate by challenging or contesting a will that does not favor them. For people with complicated family dynamics, unpopular second marriages or estranged loved ones, avoiding probate should be a top priority. When an estate is handled through non-probate channels, it becomes much less likely that a will may be successfully challenged.
  • Probate is Slow: Like most things that end up in court, probate can be time-consuming. In more complex estates, the entire process can last months or years. And, while the family waits for this time to pass, the decedent’s assets or property may be slowly losing value or be lost completely.
  •  Probate is Costly: Probating an estate requires the help of a competent probate lawyer to facilitate the matter. Since the process requires court appearances and extensive paperwork, the legal fees can mount up quickly. With proper pre-planning, much or all of this cost may be avoided.

How Can Families Prevent the Need for Probate?

Creating a smart estate plan is the best way to avoid probate. You and your attorney can work together to draft the proper legal documents and carefully time asset transfers.

Revocable Living Trust

The revocable living trust is an instrument which dictates the management or distribution of property. The property is transferred in title to the trust during the owner’s lifetime. The property owner also chooses someone to act as trustee, an appointed fiduciary who will manage the trust property and any distributions after the death of the trust’s creator.

The other good thing about a trust is that there is no need to involve the court in any way. There is nothing to file and it does not need to be submitted to the probate court.

Joint Title

Another way to avoid probate hassles is by placing your assets into joint ownership with your future beneficiaries. This way, when you pass away, the ownership interest will automatically transfer to the joint owner.

Payable-On-Death and Transfer-On-Death

Payments on death accounts (POD) have a designation which names a person who will receive the assets in the account when the original account owner dies. At the same time, transfer on death (TOD) is a designation on the title or deed to a piece of real estate or a car which will automatically change ownership once the owner dies.

Don’t Be Tempted to Give Away Your Assets

Some people assume that the easiest way to avoid probate is to give everything away before you die. However, doing this could cause problems for seniors when they may need to qualify for assistance for long-term care.

Hopefully, these tips will help you and your family plan responsibly for the future. Contact a qualified estate planning and elder law attorney today.




Seniors and Fear of Falling

October 2017

Fear of falling can take a toll when your sense of balance is fading. Some seniors avoid walking and even moving due to a fear of falling and the possibility of injury. However, being sedentary is bad for your health, too. It’s important to keep moving while finding safe workarounds for whatever balance issues you have. And the good news is that balance can improve with training.

Fear of falling and its power to limit mobility is a complex issue that public health experts grapple with worldwide. More clues emerged at the International Association of Gerontology and Geriatrics World Congress, held last July in San Francisco. “Like many other studies, ours found that the more fear you have of falling, the less likely you will go out for a walk or just be physically active,” says Phoebe Hwang, a researcher at the University of Hawaii at Manoa, whose work was highlighted at the conference. “And we know that the more physically active you are, the less likely you are to fall. It’s just a weird, vicious cycle.”

Hwang’s study looked at some 1,600 older adults living in five communities: Kingston, Ontario, and Saint-Hyacinthe, Quebec, in Canada; Manizales, Colombia; Natal, Brazil; and Tirana, Albania. Even among seniors who were fit and functioning well, those with a high fear of falling walked less than their less-fearful peers. Overall, women were less fit, had a greater fear of falls and experienced more falls than men.

Colombian researcher Fernando Gomez described at the conference an algorithm that can predict falls in primary care patients ages 65 to 74. Concerns about falling, depression, a fall in the past year and multiple chronic medical conditions were tied to a greater likelihood of falling.  “When you come upon a patient with a fear of falling, it’s usually for a good cause,” says Dr. Jack Guralnik, a professor of epidemiology and public health in the gerontology division at the University of Maryland School of Medicine. “When you examine them, they often will have balance and strength problems. You’re picking up some functional deficits that clearly put people at risk of falling.”

In the general population, more than 30 percent of adults who live in a community (not in an assisted-living facility or nursing home) fall each year, conference presenters noted. However, for concerned family members or caregivers, overcompensating by discouraging mobility isn’t the answer. “You feel like you’re improving the safety of the person, but in many ways, you’re contributing to their continued, accelerated decline,” Guralnik says. “If they’re not getting any physical activity, they’re just missing all the benefits of walking and being active.” Instead, he says, “You have to be a little bit bold.” People with disabilities, including those who rely on canes and other assistive devices, can safely improve their mobility. In Guralnik’s study of 1,635 sedentary men and women ages 70 to 89 from eight community centers across the U.S., those participating in twice-weekly programs for aerobic, balance, flexibility and resistance and strength training, plus at-home exercise, increased their ability to walk one-quarter mile (one lap around a track) and continued to exercise more in the long term.

You can benefit from simple balance-training exercises on your own throughout the day. While you’re near the kitchen counter, try standing on one foot, Guralnik suggests, or remove your hand from the counter. In your living room or bedroom, raise your leg, in a position where you can easily put your hand back down to get your balance. Every so often, stand on one leg or bend. While sitting in a chair, see if you can get up without using your arms.

A walking companion can make a “tremendous difference,” Guralnik says. “In this area of fear of falling, people really don’t want to go outside to do their walking, especially if they’re alone.” Take the fear out of physical mobility, take one day at a time and incorporate one of these suggestions into your daily routine. Before you know it, you will be walking around the block.