How To Avoid Probate

Learning how to avoid probate.
Avoiding probate doesn’t have to be difficult. Many people can use these simple and effective ways to ensure that all, or some, of their property passes directly to their heirs, without going through probate court.

Revocable Living Trust
Living trusts were invented to let people make an end-run around probate. The advantage of holding your valuable property in trust is that after your death, the trust property is not part of your estate for probate purposes. (It is, however, counted as part of your estate for federal estate tax purposes.) That’s because a trustee — not you as an individual — owns the trust property. After your death, the trustee can easily and quickly transfer the trust property to the family or friends you left it to, without probate. You specify in the trust document, which is similar to a will, who you want to inherit the property.

Pay-on-Death Accounts and Registrations
You can convert your bank accounts and retirement accounts to payable-on-death accounts. You do this by filling out a simple form in which you list a beneficiary. When you die, the money goes directly to your beneficiary without going through probate. You can do the same for security registrations, and, in some states, vehicle registrations.

Joint Ownership of Property
Several forms of joint ownership provide a simple and easy way to avoid probate when the first owner dies. To take title with someone else in a way that will avoid probate, you state, on the paper that shows your ownership (a real estate deed, for example), how you want to hold title. Usually, no additional documents are needed. When one of the owners dies, the property goes to the other joint-owner — no probate involved.

You can avoid probate by owning property as follows:

  • Joint tenancy with right of survivorship. Property owned in joint tenancy automatically passes, without probate, to the surviving owner(s) when one owner dies.
  • Tenancy by the entirety. In some states, married couples often take title not in joint tenancy, but in “tenancy by the entirety” instead. It’s very similar to joint tenancy, but can be used only by married couples (or in a few states, by same-sex partners who have registered with the state). Both avoid probate in exactly the same way.
  • Community property with right of survivorship. If you are married (or in California, if you have registered with the state as domestic partners) and live or own property in Alaska, Arizona, California, Nevada, or Wisconsin, another way to co-own property with your spouse is available to you: community property with the right of survivorship. If you hold title to property in this way, when one spouse dies, the other automatically owns the asset.

Gifts
Giving away property while you’re alive helps you avoid probate for a very simple reason: If you don’t own it when you die, it doesn’t have to go through probate. That lowers probate costs because, as a general rule, the higher the monetary value of the assets that go through probate, the higher the expense.

Simplified Procedures for Small Estates
Almost every state now offers shortcuts through probate — or a way around it completely — for “small estates.” Each state defines that term differently.

For step-by-step information on how to plan your estate, including how to avoid probate and reduce estate taxes, get Plan Your Estate, by attorneys Denis Clifford and Cora Jordan (Nolo).

© 2010 Nolo