New Ways to Avoid Probate

Wills have been at the center of estate planning for many years. However, wills don’t take legal effect until the person who made the will dies and the Will is admitted to probate. In short, wills don’t have legal effect until you go to court.

Frequently, clients will want to avoid having to go to court, whether for reasons of expense, privacy, or just discomfort with being in court.

The standard estate planning tool to avoid probate has been a revocable living trust. However, trusts can be expensive, hard to understand and to fund. A frequent problem is that not all assets are owned by the trust and therefore the trust doesn’t apply.

Many people can avoid probate through the use of a transfer on death deed for the home, a transfer on death motor vehicle title, and payable on death designations on bank accounts as well as beneficiary designations on retirement accounts and life insurance policies.

Other ways to pass ownership on death without a probate are ownership as joint tenants with right of survivorship and community property survivorship agreements.

Even if you believe that everything you own has a beneficiary or otherwise passes outside of probate, it is prudent to have a will that can be probated if necessary to pass or receive assets.

It is sometimes necessary to be able to probate a will in order to collect assets  or to pass assets that don’t have a beneficiary designation.

No one estate plan is best for everyone. Discuss your wishes with your lawyer. Discuss the best way for you and your family to pass ownership of assets on death.

Robert Morris is an Elder Law, Estate Planning, Guardianship and Medicaid Attorney at Hammerle Finley Law Firm.