The Top Three Ways to Avoid Probate by Candice Lapin

The Top Three Ways to Avoid Probate

By drafting a living trust, designating beneficiaries, and holding property jointly, you may be able to avoid probate.

by Candice Lapin
updated September 04, 2020 · 3 min read

Senior woman looks at documents

All of us would like to pass on a little something to our children or other loved ones. We save and save to make life a little easier for the people we care about. The last thing anyone wants is to give a large portion of their hard-earned money to the government in the form of probate fees. Nor do we want our loved ones, especially our spouses and children to wait months, even years to receive a penny.

Avoiding the delays and costs of probate is much easier than you think. Here are some basic tips to keep more of your estate in the hands of the people who matter most.

1. Write a Living Trust

The most straightforward way to avoid probate is simply to create a living trust. A living trust is merely an alternative to a last will. Unlike a will, which merely distributes your assets upon death, a living trust places your assets and property "in trust" which are then managed by a trustee for the benefit of your beneficiaries. It allows you to avoid probate entirely because the property and assets are already distributed to the trust.

A trust also enables you to avoid the cost of probating a will.

One of the main drawbacks of a will is the cost of probating it or passing it through the courts. In probate, there are court fees taken from the gross estate (the amount of the entire estate before the debts are paid out). This fee can often be as high as ten percent of the total estate which often is better used paying trustee fees and burial costs. With a living trust you avoid these court costs all together.

2. Name Beneficiaries on Your Retirement and Bank Accounts

For some, a last will is often a better fit than a trust because it is a more straightforward estate planning document. Yet, just because you have written a will doesn't mean that all of your assets have to pass through probate. What most people don't realize is that many of our most valued assets allow us to name beneficiaries. In fact, you may not have realized that the bank account you opened when you got your first job probably enables you to designate a beneficiary that is payable on death.

Though it may seem simple enough, many people don't take the time to actually name a beneficiary or beneficiaries for their bank accounts, investments and retirement plans. Payable on death accounts include life insurance policies, pension plans, 401K plans, IRA accounts, stocks and bonds.

All you need to do to get yourself started is to request and fill out the payable on death forms that your brokerage company or bank can provide. Remember, if you are married, some of these accounts automatically may be partially owned by your spouse. By taking the time to fill out these forms, however, you ensure that the proceeds are immediately dispersed at death without having to pass through probate, sparing a lot of time and a lot of expense.

For many, a last will can be an excellent alternative to a living trust.

3. Hold Property Jointly 

Another great way to keep your real estate out of probate is to consider holding your property jointly. If you and a spouse or significant other are thinking about purchasing a first home or even already own you own house, owning jointly allows the property to pass automatically to your significant other without having to go through probate. It doesn't matter if you are married or not. If the property is designated a jointly held property it is going to go to the surviving member of the couple. 

Of course you will want to make sure you designate this ownership clearly. You may also want to look into Tenancy by the Entirety and for married couples in Community Property states you will want to investigate designating co-owned property as Community Property with a Right of Survivorship.

Some states even offer an expedited probate for what they consider "small estates." Of course, you will want to look into your states laws for what is considered a small estate. Often this designation can indicate that an estate is less than a certain amount, or it can also mean that there is not real property for the court to examine.

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About the Author

Candice Lapin

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