How to Avoid Probate


Probate is the judicial process that distributes a person's assets after they die. It makes transfering property simpler by removing any title issues that could arise if you want to sell whatever you've been left. A probate court usually takes an inventory of the deceased's assets and liabilities and distributes those assets after paying any outstanding debts. In most states, probate is required if there's a will (testate), or if there is no will (intestate). If you want to avoid probate entirely to make things easier for your loved ones when you die, follow these steps.

  • First determine whether it's worthwhile to avoid probate. "Probate" sounds intimidating and expensive; but avoiding it could be more expensive and cumbersome. Speak with an estate planning professional to find out whether you should reorganize your assets to make avoiding probate easier.

  • Joint tenancy allows two people to have equal ownership over property--most commonly over real estate or bank accounts. Upon your death, the remaining person will become the propery's sole owner. You must take care to ensure that a joint tenancy is right for your property. In general, joint tenancy is usually best between spouses because of tax issues. Still, you can create a joint tenancy with anyone.

  • If you create a joint tenancy with one child to avoid probate but want to distribute your assets evenly between all your children, you can't do that with joint tenancy--even if you have a will. Additionally, transferring property of any significant value could have tax ramifications (either estate, gift or capital gains) that you must analyze before executing any transfer. Even if your property is owned by a joint tenancy, you still need a will in case your joint tenant dies with you.

  • Contract-controlled assets you want disbursed when you die are probate-exempt. Such contracts include life insurance, retirement accounts, or contractual trust obligations. Because the property passes through a contract and not a will, the probate court isn't involved in disbursing those funds.

  • You can also avoid probate by distributing your assets through a revocable living trust. With it, you create a legal entity that can own property. You avoid probate because the assets are not yours; they belong to the trust. To create a revocable living trust you must name a trustee and a beneficiary. You can name yourself (in most states), a bank or a trust company as the trustee. The beneficiary of the trust is the person you want to receive the assets. After creating the trust, you must fund it. Take care to treat the assets as the trustee's; they're no longer yours, although you may still have unrestricted access to the assets.

  • Perhaps the simplest way to avoid probate is to give away your property while you're alive. As of January, 2007, you can give up to $12,000 in gifts while avoiding any gift tax on the transfer of property. See the resources below for more information. If property does not belong to you when you die, it cannot be subject to probate.

Tips & Warnings

  • Some states have specific laws regarding the transfer of property (such as automobiles) upon death that you can use to further avoid subjecting your assets to probate.
  • A lawyer will make navigating the nuances of your state's probate and tax laws much easier. If you make a mistake when creating your estate plan in an effort to avoid probate, you could create a situation where your assets are not distributed according to your wishes upon your death. Hiring a lawyer will protect you from committing mistakes when creating your estate plan.
  • Even if you're able to protect all of your assets from probate, you may still need a will. For example, if you have children, you will need a will to establish guardianship for your children. You should contact a lawyer to draft a will to address matters that may not be covered through other legal devices.
  • This article does not constitute legal advice. The content of this article is for educational and entertainment purposes only. Should you have any specific questions or concerns, contact a lawyer in your area.
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