When is Probate Required?

When someone passes away, probate (if they passed away with a will) and estate administration are the typical ways to conclude a deceased’s financial life.

Both the probate process (demonstrating a will genuine) and estate administration are required to be concluded in probate court. When you are wanting your estate to bypass probate court so your surviving partner and loved ones can get their inheritance more faster, there are many estate planning devices you can utilize, comprising of:

• Shared ownership of property (vehicles, real estate)
• Beneficiary designations (financial institution accounts, life insurance, retirement accounts)
• Trusts (irrevocable and revocable living trusts)
• Transfer on death deeds
• Testimonies

How do these devices protect estate assets and at the same time help the deceased individual’s family members with quicker access to resources? Keep reading to discover more concerning probate avoidance.

Property That is Jointly Owned

If you have a small estate that consists of just a home or vehicle, you may want to think about transferring assets at death by way of joint ownership, instead of a will. This is a cost-efficient and effective estate planning method. A lot of real property is able to be jointly owned with another, comprising of:

• Real estate
• Specific kinds of personal property (instance, vehicles or jet skis)
• Financial institution accounts and other financial accounts
• Stock(s)

It’s not uncommon for spouses to jointly own their home. In a lot of states, you can be the owner of property as joint tenants with rights of survivorship or as tenants in common.

Joint tenancy with rights of survivorship bypasses the legal procedures of probate. Should a co-owner in joint tenancy with the right of survivorship pass away, their property interest is systematically transferred to the other owner. This is one of the best ways to avoid probate court for a lot of people since the marital home might be their sole probate asset.

Tenancy in common is the most fundamental type of joint tenancy. With this, every owner holds a separate, collective percentage share in the property. Following the passing away of a joint tenant, that owner’s interest in the property gets transferred through probate law to a successor.

A jointly owned financial institution account is another estate planning device. These accounts are handy in several circumstances, like:

• Spouses looking to pay bills and other costs together
• A family member overseeing the financial affairs of debilitated individual
• Parents that are teaching minors about handling finances

Under many state laws, the funding in a joint account is not deemed as a probate asset and is going to be automatically transferred to the surviving owners.

Whereas joint ownership of property is an effective means for transferring property without having to go through probate court, there are possible tax repercussions. Assets passing by outside of general probate procedures might lose out on certain tax incentives produced by the probate code in many states. There could also be income tax issues to be wary of with jointly owned assets subject to the value of the estate.

Transfer on Death Deeds

Many states allow the transference of property that has a deed related to it through a Transfer on Death Deed (TODD). This property deed systematically transfers to the heir following the passing away of the owner.

Testimony for Transfer Without Probate

California permits the inheritor of a truck to gain ownership of title for it through an “Affidavit for transfer without probate” document. The heir must demonstrate that they were named in the will and has a right to inherit the truck.

Testimonies are also used in the basic probate process utilized to distribute assets from smaller estates.

Designations for Beneficiaries

Transferring an asset to an appointed beneficiary is another general estate planning strategy. Designations for beneficiaries might be a better option should you be uncomfortable with jointly owning a property with relatives.

A beneficiary designation allows you to transfer certain types of assets following your date of passing, without giving the beneficiary any ownership in the asset throughout your lifetime. Beneficiary designation is simple. You can fill out the document on your own without the involvement of a probate attorney.

Common assets that can be transferred to named beneficiaries with POD accounts or transfer on TOD accounts comprise of:

• Life insurance policies
• Retirement plans (401k, 403b plans, IRAs)
• Pensions
• Health savings accounts
• Share options

Following you determining that beneficiary designations correspond with your estate plan, request the proper beneficiary designations documents directly from your financial institution. Guarantee that you are overseeing the requirement for each designated beneficiary. If there is a need for a modification, have knowledge of the process for updating each designation.

Trusts

Trusts are utilized to maintain privacy, bypass any probate court proceedings, and decrease estate taxes.

• These may be irrevocable throughout the lifetime of the benefactor that funded the trust.
• They do not control the trust once it is established. A trustee manages the trust. The trusts have tax benefits to the benefactor throughout their lifetime and are outside the hands of creditors’ claims.
• These can be revocable throughout the lifetime of the benefactor. These are referred to as revocable living trusts. The benefactor can modify the terms of the trust while they are still living and can manage the trust. When the benefactor passes away, a revocable living trust turns into an irrevocable one.

Both kinds of trusts enable the grantor to define terms for voucher of benefits. Benefits can be disbursed over time rather than a single gift. Assets correctly transferred into the trust are managed by the conditions of the trust and there is no requirement for probate court proceedings to transfer estate assets. That is overseen by the trustee.

Need Legal Counsel on the Way for Avoiding Probate Proceedings?

You can guarantee your family receives most or all of your estate devoid of the delays and costs of probate court. There are estate planning devices you can utilize for transferring assets outside of probate court. Speak with a local probate lawyer to figure out your options.

Source:

1. Staff, F. L. (2022, June 17). When is probate not necessary? Findlaw. Retrieved April 4, 2023, from https://www.findlaw.com/estate/probate/when-is-probate-not-necessary.html

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