Should your estate plan be designed to help you avoid probate? Probate laws vary from state to state, and the experience of probate can range from barely inconvenient in some states to wildly expensive and time consuming in others. For the vast majority of Americans, avoiding probate is a good estate planning strategy, no matter where you live.
For most people, there is no benefit to going through probate. In fact, I can’t think of a reason why anyone would want to. With all the planning options available, probate can be avoided except in the most complex situations. When assets end up in probate, it’s usually because there wasn’t a plan to avoid it, or the plan wasn’t followed. These mistakes can easily be corrected during one’s lifetime, but there’s no correction after death.
Occasionally, a client will say to me, “Well, I probated my [fill in the blank] relative’s estate and it wasn't too bad. I’m not afraid of probate.” They will often talk like they’re standing up to a bully—like they’re tougher than probate. My question to them: Why would you go to court if it’s not necessary?
Sometimes people will ask me if an estate plan that enables you to avoid probate can also protect assets from long-term care costs if you end up needing to qualify for Medicaid. If you start your planning early enough, the answer is yes. If you're doing advance Medicaid planning, you can also avoid probate. You don't have to pick one or the other. There is almost always a way to plan to avoid probate. The key is to start early and follow through on your plan.
You can build a probate avoidance plan with contingencies to address just about any situation. For example, if I’m working with a husband and wife who want to protect their assets from probate, their assets are in a revocable trust now and will stay in the trust for the benefit of the surviving spouse when one of them passes away. We’ve built in a contingency that protects assets for the long-term care needs of the surviving spouse. If the surviving spouse needs skilled care at the time their spouse passes away, the death will trigger a special type of trust to “activate.”
With the right planning, you can avoid probate and protect assets against future long-term care costs. It's not an either/or situation; it's a both/and situation. The key is to start the planning process the second it looks like you or your loved one might need long-term care. The sooner you come see us, the more we can help. Call Takacs McGinnis Elder Care Law at 615.824.2571 to schedule your confidential consultation.