When you don’t know what you don’t know, asking questions can be vital to gaining a better understanding of the subject–and better results. 

When we meet with current or prospective clients, they often have a limited understanding of estate planning and what can be accomplished through great planning. This is often reflected in the questions that they ask us.

How do I avoid probate?

Probate, also called estate administration, is the court’s process of allocating the assets of the decendent, the person who died. The proceedings begin when a decedent's personal representative files their will or requests permission to start administering their estate. If the decedent didn’t have a will, they die intestate, meaning the court allocates assets the person owned individually according to the state’s guidelines, usually to the decedent’s closest blood relatives.

We often have clients ask us how they can avoid probate. Perhaps a better question, one that really gets to the individual’s underlying goal, might be: “How do I make things as stress-free and easy for my loved ones as possible?

There are a few common methods people use to achieve the goal of avoiding the probate process for different types of assets, including joint with right of survivorship ownership, payable-on-death designations, and trusts.

Does my home have to go through probate?

It depends (yes, every lawyer’s favorite response!). Real estate is a bit quirky in North Carolina. By default, it is not subject to probate. However, if your estate has debts or taxes that need to be paid, your executor may be required to initiate a special proceeding to pull the home into the probate so that it can be sold in order to pay the debts and taxes that your estate owes. 

While you may not have significant debts currently, most people die with some debts or claims against their estate. This could be due to hospital bills from a final illness, taxes, and partial month balances for utilities, credit card bills, and similar.

Even if it’s not necessary to sell your home to settle the debts of your estate, the home remains subject to estate claims for two years after your death. This means that if your family wants or needs to sell the home, there are still some steps and filings that will be required, though it may not be a “full” probate. As a result of this process, it may take a few months before the home has a “clear title” to be sold.

What’s the easiest or best way to leave my home to my children?

We’ve seen many estates focus on keeping the home out of probate, and it has actually created more problems for the children. Here’s why:

If the home isn’t subject to probate, then from your date of death forward, the assets of your estate cannot be used to pay any expenses relating to your home. This means that your children or heirs must immediately start paying all expenses relating to the maintenance of your home--mortgage, utilities, property taxes, insurance, etc. We’ve seen many instances where this creates a financial strain for the heirs and is more likely to result in a “fire sale” of the property.

Furthermore, we’ve often seen this lead to very inequitable results among the children or heirs. Consider the situation we encountered with one family (names have been changed for confidentiality purposes):

Larry and Alma established “sweetheart” wills, leaving everything to each other and then to their two children, Marianne and Adam. Marianne lives locally and her brother lives on the west coast. Marianne has always been the “responsible one” in the family. She took care of both of her parents in their later years. She went with them to their medical appointments. She helped out around the house. As they got older, she managed their finances and paid their bills. When Alma’s health declined, Marianne helped move her to a nursing home and visited her daily. Alma passed away in the nursing home, and a few years later, Larry died.

Larry and Alma’s home did not have to go through probate, but before it could be sold, there were some required steps and filings to ensure “clear title” to the property. Further, both siblings had to agree on which realtor to hire to sell the property, the terms of the sale, etc. The process was slowed because all documents had to be signed by both siblings.

In the interim, while waiting for the home to sell, there were numerous expenses relating to the home that had to be paid--the mortgage, utilities, property taxes, and so forth. Adam was not in a position financially to be able to help with these expenses, so Marianne paid them.

When it was time for the closing on the sale of the home, Marianne gave the real estate attorney an accounting of all of the expenses that she had paid to maintain the home between the time of Larry’s death and the closing. “I’m sorry, Marianne. I cannot factor those expenses into the closing. The Will says that the property goes to you and your brother equally, so I must divide the sale proceeds equally. “You’ll have to work this out with your brother,” said the closing attorney.

By now, you may be able to guess where this is heading: Adam refused to reimburse Marianne for his half of the expenses. So Marianne ended up footing thousands of dollars of expenses out of her own pocket. Frankly, the rift between them became so deep that it continued to plague their relationship.

Now, if you’re sitting there thinking to yourself: not my children--they would never do that, I implore you not to take that gamble. Unfortunately, we see these types of situations play out over and over again in our office.

What’s the better solution if my actual goal is about making things easy and equitable for my children?

Consider using a trust. If you think that most estate planners are biased towards preferring trusts to a Will, you’re right! There's a good reason for it.

While our office helps clients with both will-based and trust-based plans, we believe that trusts are a far more powerful tool. Here’s just one example of why:

Let’s reimagine what things could have looked like for Marianne if her parents had used a trust instead of a Will. If the home was titled to the trust, it would not be subject to probate, although Marianne, as Trustee, still would have had to go through a few steps to ensure a clear title to the home before selling it.

Assuming that Larry and Alma’s other assets, such as their bank accounts, were also titled to the trust, Marianne would have been able to use their bank accounts to pay the expenses relating to the maintenance of the home rather than having to pay them out of her own pocket.  As Trustee, Marianne would have been able to handle the hiring of the realtor and the sale of the property without a bogged-down long-distance process with her brother.

Importantly, when the home finally sold, the proceeds of the sale would have been paid to the trust. Assuming all debts and claims had been resolved, the net proceeds would have been split equally between Marianne and Adam. All of this would have made things so much less stressful for Marianne and would have ensured that the home was split equitably without Marianne having to pay thousands of dollars in expenses out of her own pocket and damaging her relationship with her only sibling in the process.

Jackie Bedard
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Attorney, Author, and Founder of Carolina Family Estate Planning