Avoiding Probate

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Probate: What the Estate Includes & Avoiding Probate

Not everything the decedent owned will be part of the estate and subject to probate.  Assets with a named beneficiary will pass automatically to the beneficiary and are not subject to probate.  For example, if the deceased had named a beneficiary on a bank account, the account will transfer automatically upon death. The beneficiary will only need to present a death certificate to the bank to collect the funds.

Some assets will always pass outside of probate. Some of these assets may include:

  • Life Insurance Proceeds: A life insurance policy is a contract with an insurance company.  That contract states who will be paid after ones death.  Since payment of the insurance proceeds goes to the named beneficiary, the insurance proceeds do not go through probate.
  • Retirement Assets (IRAs, 401(k)s, and other qualified plan proceeds): These assets pass directly to the beneficiary named in the plan.  As with a life insurance policy, the named beneficiary is agreed upon in advance, and there is no need to go through probate.

Other assets may pass outside of probate if they are set up to do so:

  • Property Titled as Joint Tenancy with Rights of Survivorship: When two or more individuals own property together, they can choose to designate the type of ownership as joint tenancy with rights of survivorship. In that case, when one of the owners dies, that person’s ownership interest automatically passes to the remaining owner. Married couples often hold assets in this way, although for married couples, they give it a different title – tenancy by the entirety.
  • Payment on Death (POD) bank accounts: When an account is opened at a financial institution, such as a bank, a beneficiary can be named in the event of the primary account holder’s death.  With a payment on death account, the beneficiary has no ownership interest in or access to the account until the owner dies.
  • Transfer on Death (TOD) securities: Stocks, bonds and brokerage accounts can be set up in the same way as POD bank accounts. The account owner retains sole ownership rights while alive, and the named beneficiary receives the proceeds when the account holder dies.
  • Revocable Living Trusts: A revocable living trust is an entity that can hold title to property, just as an individual would.  Title to trust property is held by the trustee for the trust, not the donor, and therefore avoids probate.  Because the trust is revocable, the donor effectively has access to the property during his or her lifetime, almost as if he or she owned it outright.  At the time of the donor’s death, a trust document, similar to a will, directs the trustee on how to distribute the trust property.

Although these actions may avoid probate, there are drawbacks to consider.  In particular, holding assets jointly or with survivorship rights can create problems.  In a joint tenancy with rights of survivorship, the owner gives up exclusive control of the assets.  In some situations, the co-owner may be able to take all the assets.  Creditors of the joint owner may seek to satisfy their claims from the joint account. An experienced attorney can help you determine the best model for your needs.

 

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