METHODS TO AVOID PROBATE COURT:

probate-court

There are several ways to avoid probate court. Learning the most popular methods is not hard to do. Most people can use these simple and effective methods to ensure that as much of their property as possible passes directly to their heirs, without going through probate court.

Revocable Living Trusts

Living trusts were invented to allow people to go around probate proceedings. The advantage of holding your valuable property in a trust is that after your death, the trust property is not counted as part of your estate for probate purposes. (It does remain counted as part of your estate for federal estate tax purposes though.) This is because a trustee (not you as an individual) owns the trust property. After your death, the trustee can quickly and easily transfer the trust property to the family or friends you wish to leave it to, without probate. In the trust document, which is similar to a will, you are allowed to specify who you want to inherit the property.

Payable on Death Accounts and Registrations

It is possible to convert your bank and retirement accounts to payable-on-death accounts. This is done by filling out a simple form in which you list a beneficiary. When you pass away, the money goes directly to your beneficiary without going through probate court. The same can be done for security registrations, and in some states, vehicle registrations. Check with your preferred legal team for specifics.

Joint Ownership of Property

There are several forms of joint ownership that provide a simple way to avoid probate when the first owner dies. To title a property with someone else in a way that will avoid probate, you state, on the paper that shows your ownership (for example: a real estate deed), how you want to hold title. Typically, no additional documents are needed. When one of the owners die, the property goes to the other joint-owner, with no probate involved.

It’s possible to avoid probate court by owning property as follows:

  • Joint tenancy with right of survivorship
    • Property owned in joint tenancy automatically passes to the surviving owner(s) when one owner dies, no probate involved.
  • Tenancy by the entirety
    • Tenancy by the entirety is very similar to joint tenancy. In some states, married couples often take title not in joint tenancy, but in “tenancy by the entirety” instead. Tenancy by the entirety 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 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. This is also available to domestic partners in California, if you have registered with the state.

Gifts

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

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