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Probate, and How to Avoid It

Nov. 8, 2016
Estate Planning, Investing
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By Heather Castle, CFP

Learn more about Heather at NerdWallet’s Ask an Advisor.

The topic of probate raises many questions, but the most frequently asked is a simple one: How can I avoid it?

First, let’s understand what probate is. Probate is the legal process used to determine whether a deceased person’s will is genuine and valid. Probate also determines who the beneficiaries are when someone dies without a will, also known as “intestate.”

Probate courts appoint an executor, who has the authority to dispose of the deceased’s assets either as outlined by the will or as decided by the court, generally in cases of no will.

>> MORE: What you need to know about estate planning

The probate process has some drawbacks. It can take months, even years, to settle. Because of the required court hearings and property appraisals, it can be expensive. Plus, it’s a public process that offers no privacy to an estate, revealing the types and amounts of assets.

Because of these downsides, many people are moving away from using a will as the only means to transfer their property and assets when they die.

Here are three common ways to avoid probate:

Joint tenancies

Joint tenancy with right of survivorship (JTWROS) involves splitting the ownership of assets between two people, typically spouses. This gives the surviving spouse immediate ownership of all of the deceased person’s assets at the time of death. It removes the assets owned by the deceased from their estate, thus avoiding probate on them.

A related type of arrangement, called tenancy in common, doesn’t include right of survivorship. In this case, one person’s share wouldn’t necessarily go to the other person but rather to whomever he or she names in the will.

Beneficiary designations

Another way to transfer assets directly to specific people without going through probate is by designating beneficiaries on assets like retirement accounts, including IRAs, and life insurance and annuity policies. In this case, the assets would transfer privately outside of the will and avoid probate. For many nonretirement accounts, you can make designations such as “payable on death” or “transferable on death,” which work like adding a beneficiary.

Using these designations allows for some assets to avoid probate, but not all. Other assets that don’t allow for beneficiary designations would still pass through probate unless you do some additional planning. These types of assets include real estate and personal property such as jewelry, art and collectibles.

Living trusts

A living trust or “revocable trust” is one of the most popular ways to avoid probate. It places assets into a trust while the grantor — the assets’ owner — is alive. The grantor has access to the assets and can use and benefit from them while alive.

When the grantor dies, the trust becomes “irrevocable” and distributes assets to beneficiaries in the way the grantor stipulated in the trust documents.

By removing the assets from the name of the grantor and putting them in the name of the trust, the grantor effectively removes them from his or her estate. That allows the trust assets to pass eventually from grantor to beneficiaries.

If you use a living trust to bypass probate, you’ll also need a will. Using a living trust in conjunction with a will, typically called a “pour-over will,” ensures that any personal property you didn’t place in the trust’s name would move to the trust when you die.

As with every aspect of your estate, you should contact an experienced attorney to discuss the probate process and laws in your state and whether you should consider trying to limit or avoid probate.

Heather Castle is a certified financial planner and the founder of Castle Wealth Advisors LLC in Los Angeles.