Probate is simply a term used to describe any court matter or proceeding involving the estate of a deceased person. A deceased person cannot continue to own assets, therefore anything owned by that person must be identified and properly transferred to its new owner (called heirs or devisees) through this process. However, before the new owners receive any portion of the assets, the assets are applied toward any taxes, debts, or expenses through what's often referred to as the "probate process."
Prior to the change in our tax laws, people often sought to "avoid probate" as a method of avoiding estate taxes. It wasn't so much the process they were avoiding as much as it was the Internal Revenue Service. Due to the current federal tax laws (which only tax estates in excess of $11 million dollars per person) the strategies to "avoid probate" have lost a lot of their luster. For example, the need for complex estate plans involving family listed partnerships and irrevocable trusts have dramatically declined as often the negatives of these strategies outweigh the positives in the current tax climate.
We warn prospective clients to be careful when using the internet to decide whether or not they need to "avoid probate" at all. South Carolina does not have state estate taxes and therefore advice posted by someone in another state might not apply. We also have a host of simple and cost effective strategies we provide in our blog and during our consults to make the probate process more comfortable for the ones you leave behind. If you have any questions about your estate plan, avoiding probate or whether or not you need a trust please call us for a free consult.