Probate can be defined as the legal process of estate administration. When someone dies with a last will in place, it must be admitted to probate, and the Surrogate’s Court would provide supervision while the estate is being administered. The court is also responsible for the estates of people that die intestate. Intestacy is the condition of passing away without any estate planning documents at all.
The probate process provides protections for creditors that may want to seek satisfaction from assets that are part of the estate. It also opens a window of opportunity for will contests. This being stated, the process is not entirely positive for the rightful heirs to an estate. It is time-consuming, it is expensive, and it is a public proceeding, so probate records are really available to anyone.
The good news is that there are a number of different ways to pass along assets outside of the probate process, and we will look at a few of them in this post.
Payable on Death Accounts
When you open up an account at a bank or a brokerage, you have the option of adding a beneficiary. These accounts are called payable on death or transfer on death accounts. The beneficiary that you name would have no access to the funds while you are alive. After your passing, the beneficiary would assume ownership of the assets, and the probate process would not enter the picture.
Many people hear about payable on death accounts and they decide that such an account could be the centerpiece of an estate plan. In fact, there are limitations and risks involved in this course of action. Let’s say that you name a beneficiary, and you tell that person to distribute the assets among five different inheritors. The verbal instructions would not be legally binding, so the beneficiary would not be compelled to follow them.
Depending on the rules of the institution, you may be able to add multiple beneficiaries. However, they typically demand that the beneficiaries receive equal shares of the assets that remain in the account. This may not be consistent with your wishes.
Joint Tenancy With Right of Survivorship
Another asset transfer that would not be subject to probate is a real property transfer through joint tenancy. To explain by way of example, we will hypothetically assume that you own your home outright and you want to leave it to your son after you pass away. You could add your son to the title or deed of your property. This is called the condition of joint tenancy, and it comes with right of survivorship. After you are gone, your son would become the sole owner of the home, and probate would not be a factor.
This may sound like a great idea on the surface, but there are some reasons why you may want to take pause. One of them is the fact that your son would own half of the property as soon as you execute the plan. If he was to run into financial or tax problems, his portion of the property could be attached by creditors. Plus, if you ever wanted to sell the home, you would need his approval and cooperation.
Life Insurance
Every responsible adult should carry the appropriate level of life insurance coverage. This is true even if you are relatively young, because you never know what the future holds. If you have life insurance, after you pass away, the beneficiary would receive the proceeds from the company free of the probate process. Plus, we should also point out the fact that the inheritance would not be subject to regular income taxes.
Revocable Living Trusts
All things considered, the best probate avoidance tool that is used in the field of estate planning is the revocable living trust. When you establish a living trust, you can act as the trustee and the beneficiary throughout your life. You name successors to assume these roles after you pass away. After you are gone, the trustee would follow your instructions and distribute the assets in the trust to the beneficiaries. The transfers would not be subject to probate.
Download Our Free Estate Planning Worksheet!
If you would like to obtain more detailed information about the estate planning process, we have a great tool that you can access through this website. Our attorneys have produced a free estate planning worksheet, and you can learn a lot if you go through it. To get your copy, click this link and follow the simple instructions.
Michael Robinson, Estate Planning Attorney
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