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  • Writer's pictureVictoria Edelman

Avoiding Probate in Estate Planning

Updated: May 4, 2023

Estate planning is a critical process that everyone, particularly members of the LGBTQ+ community, should consider. It involves the creation of a plan that outlines how a person's assets will be distributed in the event of their death. One common issue that arises during estate planning is probate. Probate is a legal process that occurs when a person's will is validated and their assets are distributed according to the will's instructions. It can be a time-consuming and expensive process that can be avoided with proper estate planning.

Here are some tips for LGBTQ+ clients to avoid probate through estate planning:

  • Create a Revocable Living Trust

One of the most effective ways to avoid probate is to create a revocable living trust. This type of trust allows you to transfer ownership of your assets to the trust while you are still alive. After you die, the assets in the trust will be distributed to your beneficiaries without going through probate. This method is especially useful for LGBTQ+ individuals who may have a partner or spouse who may not be recognized as a legal heir in their state.

  • Name Beneficiaries on Retirement Accounts and Life Insurance Policies

Another way to avoid probate is to name beneficiaries on retirement accounts and life insurance policies. These types of assets do not go through probate and will be distributed directly to the named beneficiaries. It's important to review and update beneficiary designations regularly to ensure that they reflect your wishes and any changes in your family situation.

  • Joint Ownership with Rights of Survivorship

Joint ownership with rights of survivorship is another method to avoid probate. This option is most commonly used for real estate or bank accounts. By owning assets jointly with another person, the assets will transfer directly to the surviving owner without going through probate.

The Importance of Avoiding Probate

Avoiding probate is important for several reasons. First, it can be a lengthy and expensive process that can tie up your assets for months or even years. Second, probate is a public process, which means that the details of your estate will be available for anyone to see. Finally, probate can lead to family conflicts and disputes, especially in cases where there are disagreements over the distribution of assets. Dying intestate (without a will) triggers automatic distributions that can be contrary to the intentions of LGBTQ+ clients, due to heternormative legislation.

In conclusion, estate planning is a critical process that everyone should consider, including members of the LGBTQ+ community. Avoiding probate through estate planning can save time and money, protect your privacy, and prevent family conflicts. If you're considering estate planning, it's important to work with an experienced estate planning attorney who can help you create a plan that meets your unique needs and circumstances.


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