The concept for avoiding probate is relatively simple for those who plan ahead; in practice, however, it can much more difficult. The trick is to make sure all of your property will pass to another person automatically upon your death. There are various techniques for accomplishing this, and that’s why Cleveland probate attorney Bart Leonardi has written this helpful guide outlining a few of the most common.
PROBATE: WHAT IS IT, AND SHOULD I AVOID IT?
Before we discuss some of the more common techniques for avoiding probate, you may be wondering why or whether that should be your goal. Probate is the court-supervised process that your heirs must go through to transfer your assets according to your will, or default of a will, according to the applicable state statute.
Many people wish to avoid probate because of the time and cost involved, and, as a court-supervised process, public record. Some attorneys estimate that the average probate takes about a year, and if your assets are diverse or complicated, probate can take more than one year. During this time, your estate must pay your attorney and an executor to administer your estate. By some estimates, the average cost to administer an estate is 5% of the value of your estate. And if you have any assets or a disposition that you wish you to keep secret, you will be unable to do so in probate because all of the records are public.
HOW TO PREPARE FOR AVOIDING PROBATE
If the key to avoiding probate is to make sure all of your property passes automatically upon your death, it makes sense that you need to know what all of your property is. If you forget about your car or your jewelry, for example, your estate will have to be probated to deal with the disposition of your car or jewelry.
This doesn’t mean you have to make a list of every single item you own, but you should know that you own a house with various personal belongings so that you can make sure those personal belongings pass automatically along with the house.
COMMON PROBATE AVOIDANCE TECHNIQUES
There are four main probate avoidance techniques: beneficiary designations, joint tenancies, gifts, and revocable trusts.
- Beneficiary Designations: Beneficiary designations are useful for monetary benefits, like life insurance proceeds and pay-on-death accounts. You can easily create a pay-on-death account at virtually any bank in the United States by filling out a simple form. Life insurance companies likewise have beneficiary forms.
- Joint Tenancies: While joint tenancies can be used for bank accounts, they are particularly useful for real property. To take advantage of a joint tenancy, you simply need to deed the property to yourself and another as joint tenants with right of survivorship. When one owner dies, the property automatically passes to the surviving owner. Be careful when forming joint tenancies; many states’ courts construe them so narrowly that even a single word can defeat them in some instances.
- Gifts: Gifts are also a helpful way to avoid probate because they allow you to dispose of property before your death. Gifts are useful for personal property, but they can also be used for real property as well. Just be sure that your gift will not implicate any gift tax consequences.
- Revocable Trusts: Revocable trusts avoid probate because technically the trust, and not an individual, owns the property. In practice, however, the trust arrangement can have very little impact or significance. For example, an individual can be the trustee of a trust for the benefit of himself and continue to enjoy the property as if it were his own. Upon the individual’s death, the property is distributed according to the terms of the trust document.
A PROBATE ATTORNEY YOU CAN TRUST
The hardest part about avoiding probate is making sure that you haven’t overlooked any property or mislabeled a probate avoidance technique. Bart Leonardi knows the common mistakes people make when trying to avoid probate, and he can help you prevent them. To arrange a consultation with Cleveland estate planning attorney Bart Leonardi click here.