Avoiding The Probate Process

An efficient and relatively easy way to avoid Probate Court is to establish a living trust. In simplest terms, a trust is an agreement that spells out the rules you want followed for the assets owned by the trust. It takes effect immediately and continues even if you become incapacitated or pass away but requires the retitling of your assets into the trust.  This does not mean that you lose control of your assets.  They are still controlled by you during your lifetime.  It simply means that upon your death, title to these assets passes from the trust to the specific beneficiaries you name in the trust.  Though the living trust option requires a little work on the front end to re-title assets into the trust, also called “funding the trust”, it avoids the need for filing a probate case.

 If the trust option sounds too cumbersome due to the funding requirement, there are other ways to ensure assets pass to loved ones without the burden of the probate process. Making sure that you name a beneficiary to your retirement, bank, and investment accounts as well as insurance policies is another strategic way to avoid probate court.  If a beneficiary is named to these accounts, that individual will receive those assets upon your death, without having to petition the probate court.

Lastly, to ensure that your home and other real estate transfers to a spouse or loved one automatically upon your death, title to that real estate must be held by you and your loved one as “joint tenants with rights of survivorship.”  The inclusion of this language prevents the need for a probate action.  If title to your real estate is held solely by you or with another person as “tenants in common” a probate case is guaranteed.  There is an easy fix to this though.  Any real estate counsel can prepare a survivorship deed with the appropriate language and have it recorded in the real estate records.  

Because probate is a public process that can be costly and lengthy, these non-probate options may be preferable to spare your loved ones that burden. 

*This post is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this blog, you understand that there is no attorney-client relationship between you and Weber Pierce, LLC.