Probate – What’s That? And How to Avoid It

Thank you to attorney Danielle Cornejo for writing this post sponsored by Martin Pringle Law Firm.

After the loss of a loved one, the last thing anyone wants is to be tied up in court for months, or in some cases, even years. Unfortunately, more often than not families find themselves in this exact situation—in the probate process. 

If you’ve heard anything about probate, you’ve probably heard it’s a long, expensive process that should be avoided at all costs. From experience, I can say this has some truth to it. The good news is that with a bit of planning, probate can usually be avoided.  

But first, what exactly is probate? 

What is probate? 

When a person dies, probate is the legal process where the court will appoint someone to be in charge of the deceased person’s estate and distribute the property to the people it is supposed to go to.   

There are two main ways to end up in probate court: with a Last Will and Testament or without one.  If you die without a Will, then any of your property passing through probate will go to the people entitled to it under Kansas law.  If you have a Will, then the probate property will go to the people you’ve chosen. 

One thing to keep in mind is even if you have a Last Will and Testament, that doesn’t mean you avoid probate.  In fact, the decisions you make in a Will have no effect unless the Will is probated, or in other words, admitted to court to begin the legal process of administering your estate.  

While probate can theoretically be completed in six months, in most cases it takes much longer.  In addition to the lengthy timeline, it can also get expensive with court costs, attorney fees, and others involved in the administration. So, probate doesn’t sound great, right?  Now here’s how you can avoid it. 

How do you avoid probate? 

There are many ways to avoid the probate process, most of which require planning in advance. The best chance of avoiding probate is to establish a living trust.  Property held in your trust is not part of your probate estate upon your death and therefor doesn’t have to go through court. At the same time, you still have the benefit of controlling who you want the property to go to.  

Although working with an attorney to implement a comprehensive estate plan is the best choice for avoiding probate, there are also simple steps you can take today to get moving in the right direction.  

Jointly-titling assets is one way to avoid probate, so you can start with reviewing the ownership of your assets.   For example, is your house titled in joint tenancy with rights of survivorship with your spouse or some other person? If so, then upon one of your deaths, the survivor will own the house without having to go through probate. 

Another way to avoid probate is to name beneficiaries. Do you have beneficiary designations on your bank accounts? IRA? Life insurance policy?  The simple step of making sure your beneficiary designations are filled out and current can take an asset that otherwise would have to pass through probate and give it directly to the person you want it to go to.   

Although getting your estate plan in place to avoid probate involves some time and expense up front, it is a loving gesture that will save your loved ones time, money, and aggravation in the future. 

Danielle Cornejo earned an undergraduate degree in Strategic Communications at Oklahoma State University.  She knew she wanted to further her education, and after a bit of soul searching, Danielle decided to apply to law school.  When Danielle’s father passed away during her first year at the University of Oklahoma School of Law, she was elected by her family to administer the estate.  Left with no will or trust to guide her, Danielle relied on law school professors and mentors to help her through the emotional task of administering her father’s estate.  This experience confirmed for Danielle that attending law school was the right decision.  Although she encourages clients to seek her assistance in making a testamentary plan, Danielle also stands ready to help those who find themselves in situations similar to hers, when a loved one dies intestate.  Danielle focuses her practice on estate planning, estate administration, tax law, business law, and real estate matters.