When a loved one passes away, those left behind must determine what to do with their assets. Unless the decedent had a trust in place, the decedent’s property would be distributed through a procedure called probate.
Probate is the court-supervised process of determining whether the decedent had a valid will and then settling the estate. During this process, the administrator or executor of the estate gathers the decedent’s assets, pays off any debts, and then transfers the decedent’s property to the rightful heirs or beneficiaries.
The Harris Law Firm, PLLC, offers help with any stage of the probate process. However, we also understand that many people seek to avoid probate. Our attorneys can advise you on estate planning options and other tools to help you achieve this goal.
Why Avoid Probate?
Probate can be a lengthy and expensive process. If a beneficiary contests the will or if the estate is large and complex, the probate process may take a year or more to complete. Portions of the court record also are open to the public. For these reasons, many people want to avoid probate if possible.
Ways to Avoid Probate
There are many ways to hold or designate assets so that they will not be part of the probate estate upon the owner’s death. Utilizing one or more of these allows you to limit the scope and duration of probate or avoid formal probate proceedings altogether.
Joint Ownership with Right of Survivorship
Two people, such as spouses, may own real property like houses or land as joint tenants with a right of survivorship or as a tenancy in the entirety with a right of survivorship. The effect of both types of ownership is that the property passes to one joint owner upon the death of the other without the need for estate administration.
Real property may be the subject of a transfer-on-death (TOD) deed, meaning it passes directly to the designated beneficiary upon the owner’s death.
Beneficiary Designation and Payable at Death Provisions
Another way of avoiding probate in Mississippi is by designating beneficiaries for life insurance policies, annuities, individual retirement accounts (IRAs), and 401K accounts. The proceeds are then paid directly to the beneficiary on death instead of becoming part of the decedent’s estate.
Banks achieve the same result by allowing individuals to make checking, savings, certificate of deposit, or other types of bank accounts payable at death to a named beneficiary. Upon the original owner’s death, a beneficiary who is 16 years of age or older may request the funds without the need for probate.
If you want to ensure that your property passes without probate, you can create a trust. In order to establish a valid trust, you must fund it. This means you transfer your real and personal property to yourself as trustee of the trust.
If you create a revocable trust, you as the trustee still control your property during your lifetime. As the name suggests, you also can revoke or modify the trust easily at any time if you change your mind.
If you create an irrevocable trust, you cannot change its terms—at least not easily. But for its rigidity, you get the added benefits of having the transferred assets excluded from your estate. This means that the assets you put into your trust won’t be counted as part of your estate for tax purposes or for the purpose of determining eligibility for Medicaid.
Generally, a trust is created for the benefit of named beneficiaries, for the care of animals, or for charitable purposes. Upon your death, your successor trustee distributes your assets according to the terms of the trust.
An individual with a small estate may not expressly plan to avoid probate but may nonetheless achieve this result. If the estate’s total value is less than $75,000 and the estate does not contain any real property, no probate is necessary. Instead, the decedent’s successor may affirm by affidavit the right to distribute the remaining personal property.
Muniment of Title
Similarly, if the decedent had a will and owned real property, but the estate’s personal property value did not exceed $75,000, the real property may be transferred without formal probate administration. Rather, the will is admitted to probate as a muniment of title.
Help Avoiding Probate in Mississippi
If you seek ways to avoid probate, contact Harris Law Firm, PLLC today. Our compassionate attorneys understand that you want to spare your beneficiaries the hardship of dealing with protracted court proceedings.
We know how to avoid probate in Mississippi, and we will help you craft a sophisticated estate plan that meets your needs and protects your hard-earned assets. We pride ourselves on the excellent personal relationships we form with our valued clients. We work with you to achieve your goals quickly and efficiently. Contact us today for a free case review.