Probate is usually the only option if there is a family dispute if there is property and bills that may go unpaid if there are minor heirs or beneficiaries or there is a financial account that cannot be accessed without probate. Absent these situations, there are other alternatives that may work.
Probate can often be avoided with effective estate planning. This usually has to be done prior to death.
Estate planning may include executing a revocable or irrevocable trust, holding property jointly, filling out beneficiary designations, and/or making lifetime gifts or transfers. This type of planning may be easier than you think.
If your loved one did not do this or their estate plan did not dispose of all of their property, there still may be alternatives for settling their estate outside of probate.
One way to avoid probate is to use a small estate affidavit. The small estate affidavit can only be used if there is no will and if the estate assets are valued at less than $75,000. It cannot be used if the estate includes real estate (other than a homestead that passes to the surviving spouse or dependent children) and other types of exempt property (vehicle, home furnishings, livestock, and tools). It also cannot be used if there are debts owed by the estate that will not be paid.
The affidavit of heirship can also be used to avoid probate in some cases. The affidavit of heirship is used when there is no will and the only asset in the estate is real estate. It only serves to record who the heirs are and serves as evidence that the heirs inherited the real estate. The affidavit also cannot be used if there are family disputes or debts.
Probate can also be avoided in some cases by using a family settlement agreement. A family settlement agreement is a contract between the heirs as to who gets what from the estate. These agreements can only be used if the heirs agree and, generally, there are no debts that will go unpaid.
