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Make Sure Your Dream Home Doesn’t Become a Nightmare for Your Heirs

why have a probate attorney

Home ownership has long been and continues to be the ultimate American dream!

But all too often the physical place we call ‘home’ turns into a real nightmare for heirs upon the owner’s death. When ‘how’ we own the home or ‘how’ the laws work is assumed and not actually known, unintended consequences occur – like probate.

The Many Ways A Home Can Be Owned

A home can be owned (1) individually or (2) jointly or (3) in a business, often called an LLC, or (4) in a trust. Three of the four mentioned are more than likely destined to go through the probate process even if you have a will. The probate process requires court approval to manage the estate, as well as publication in the paper for four weeks. Once the estate has been fully administered, then the executor or administrator must file more papers to request permission to close the estate and discharge the executor/administrator from all liability.

Everyone Would Like To Avoid Probate

Two major reasons sum up why most people attempt to avoid probate.

1) It ties up property for months, sometimes more than a year.

2) It’s expensive. In some states, attorney and court fees can take up to 5% of an estate’s value.

That said, it is no wonder why most people, especially real estate professionals, want to avoid probate. Yet, the majority of people who die subject their estates to probate. And there’s only one good reason that happens: Because most people simply don’t know how to avoid it.

How To Avoid Probate

All individually held assets go through probate. Thus, to avoid probate, the individually held assets need to either be placed in a trust or held with joint ownership.

There are two ways to jointly own property. One way goes through probate (tenants in common), the other avoids it at the first person’s death (joint with rights of survivorship). To avoid probate with jointly held property, the deed must include language referencing “rights of survivorship”; otherwise, the law will presume it is “tenants in common” and require probate. Most people assume they have the type that avoids probate. Most people are wrong. The only way to tell is by looking at the language on the deed. Keep in mind however, once the first joint owner dies, the property is then held by an individual again and would be subject to probate upon the second owners death. Thus, joint ownership really only delays probate.

Businesses, LLCs, are considered personal property that is subject to probate. The only ways to avoid this are (1) having a solid business succession plan – a written legal document – detailing how the business is to be designated at the death of the owner, or (2) place the business in a trust.

Sometimes there are tax advantaged reasons to actually go through probate. So avoiding it should not always be the goal.

The Elder & Disability Law Firm of Victoria L. Collier, PC d/b/a The Estate & Asset Protection Law Firm helps families create estate and asset protection plans to avoid probate. We also help families through the probate process when an avoidance plan was not in place prior to death. Check out our website at