Klenk Law

Is it Possible to Avoid Probate?

Posted on Wed Oct 24, 2018, on Probate and Estate Administration

Probate Attorney

When your loved one dies their estate does not necessarily have to go through probate court. With the help of a probate lawyer Melbourne, FL relies on, there are easy and efficient ways to make sure that most, even all, of their property go right to their beneficiaries without the use of probate court.

What are Some Ways to Avoid Probate?

Bank Accounts

There is a form that you can complete that will take your bank account to an account that is payable-on-death. The form will require you to list a beneficiary so that when you die, the money passes directly to the person you name, eliminating the need to go through probate.

In some states, you can use the payable-by-death option for car registrations as well. There are even a few states where you can transfer your real estate deed upon death.

Revocable Living Trusts

One of the main reasons people have trusts is to avoid probate. That is because any property held in a trust does not become a part of the probate process. If you have a trust, the trustee, not you, own the property in the trust. When you die the trustee can transfer the property to the people you have designated to receive it, without going through the probate process.

How Property is Titled

There are several different ways you can hold title to real estate. If you take title to a property with someone else, depending upon the way it is titled will determine if you can avoid probate. If titled property, when you die the property will automatically pass to the additional joint-owner. The ways to title a property to avoid probate are:

  • Joint tenancy with right of survivorship. Owning a property titled like this will automatically pass to the other owner when one owner passes away.
  • Tenancy by the entirety. Some states require married couples to use tenancy by the entirety instead of joint tenancy with right of survivorship. It works the same way as far as avoiding probate is concerned.
  • Community property with right of survivorship. In a community property state such as California, Alaska, Idaho, Arizona, Texas, Wisconsin, or Nevada this type of ownership works the same way as the other two listed above. When one owner or spouse dies, the remaining spouse owns the property.

Gifting Property

Property you do not own will not have to go through the probate process. Therefore, giving property away during your lifetime is another way to bypass probate. In addition, most gifts do not have to pay federal gift tax.

How your property is titled will determine whether or not you even have anything that needs to go through the probate process when you die. Check out the way your home is titled, the way your bank accounts are set up and even check your automobile registration. Pre-planning can save a lot of time and money for your beneficiaries or surviving spouse/partner. Probate is not something that has to concern you if you plan accordingly with how your property is titled and if necessary create a living trust.

 

Thank you to our friends and contributors at Arcadier, Biggie & Wood, PLLC for their insight into probate and estate planning.

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