Avoiding Probate

If you are the executor of an estate, you face substantial legal and financial responsibilities. You must open the estate, collect and inventory assets, collect debts owed to the estate, distribute assets to the beneficiaries, and close the estate. Any mistake in performing any of these steps may not only delay the probate procedure, but also could cause legal problems for you. If you are an executor, contact an attorney experienced in probate and estate administration to help you navigate the probate process.

Learn More About Probate and Estate Administration

Generally, probate and estate administration is the process of settling a decedent's estate by resolving all of his or her debts and distributing his or her property to the estate beneficiaries. Probate is required for most estates, including those which involve a will and those which do not.

At the law firm of Kelaher, Garvey, Ballou, Van Dyke & Rogalski, P.C., our attorneys are able to handle large, complex estates, as well as contested estates. We represent the best interests of executors, administrators and individual family members who become involved in probate disputes for clients throughout Toms River, the New Jersey Shore and the surrounding areas.

When you rely on our team of legal professionals, you can expect to receive compassionate, quality legal advice and representation.

For more information about how we handle probate and estate issues, visit our Probate and Estate Administration page.

Below, we have provided some information about probate and estate administration to help educate you about the relevant issues. If you are ready for answers about your specific case, visit our contact page to schedule a consultation.

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Our attorneys help individuals and families throughout New Jersey who need help administering estates. When you rely on us to handle your case, you can count on receiving quality legal advice and representation from one of our experienced probate and estate lawyers.

To learn more about the probate and estate administration process, please call 732-606-4590 or visit our contact page to set-up an initial consultation with one of our legal professionals. For your convenience, we will be more than happy to discuss your case with you over the phone, at our office or at your home.

Assets disposed of outside the probate process are part of the non-probate estate. Since a probate proceeding is not required, these assets are distributed more quickly to the appropriate beneficiaries. Many people seek out these assets and ownership models in order to save their loved ones from the difficulties associated with going through probate. If you are interested in managing your finances and your property so that your family does not have to go through probate, contact Kelaher, Garvey, Ballou, Van Dyke & Rogalski, P.C. in Toms River, New Jersey.

Non-Probate Assets

Certain types of assets are part of the non-probate estate because of their contractual nature. These types of assets include:

Life insurance proceeds: A life insurance policy is a contract with an insurance company that specifically states who will be paid after your death. Since payment of the life insurance proceeds to the named beneficiary is in the contract, there is no need for the life insurance policy to go through probate.
IRAs, 401(k)s, and other tax-deferred retirement plan proceeds: IRAs, 401(k)s, and other tax-deferred retirement plan proceeds pass directly to the beneficiaries designated in the plans. Similar to a life insurance policy, the payment of the retirement fund to the named beneficiary is agreed upon in advance, and, like life insurance proceeds, there is no need to go through probate.

Ownership Models that Avoid Probate

Other types of assets only become non-probate assets if the owner or owners make certain decisions as to how those assets are held.

Joint tenancy with rights of survivorship: A joint tenancy with rights of survivorship means that two or more owners hold title to an asset together. When one of the owners dies, that person's ownership interest automatically passes to the remaining owner or owners. Married couples typically hold assets such as real estate, automobiles and bank accounts in this way.
Payment on Death (POD) bank accounts: Payment on Death bank accounts name contingent beneficiaries when the account is opened with the financial institution. The beneficiary possesses no ownership interest in the account until the account owner dies. At that time, the beneficiary receives full ownership of the money held in the account.
Transfer on Death (TOD) securities: Transfer on Death stocks, bonds and brokerage accounts provide the same advantages as POD bank accounts. The account holder retains exclusive ownership rights while he or she is alive, and the named beneficiary receives the proceeds when the account holder dies.
Revocable Living Trusts: A revocable living trust is a legal entity that holds title to property. Since the trustee for the trust, not the donor, has title to the trust, the property within the trust will pass outside probate. Because the trust is revocable, the testator has access to the property during his or her lifetime, almost as if he or she owned it outright. At the time of the testator's death, a trust document, similar to a will, directs the trustee as to the distribution of the trust property.

Although probate is avoided, holding assets jointly or with survivorship rights can create problems. For example, in the case of assets held in a joint tenancy with rights of survivorship, the owner gives up exclusive control of the assets. As a result, the owner may be at risk that the other owner will take all the assets, or that creditors of the joint owner will seek to satisfy their claims from the joint account. Experienced legal advice can help you determine the best model for your needs.

Conclusion

While non-probate assets are not subject to probate procedure, there are pros and cons to each model. To determine the best way for you to maintain your assets, contact an attorney experienced in probate and estate administration at Kelaher, Garvey, Ballou, Van Dyke & Rogalski, P.C. in Toms River, New Jersey.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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