Do you want to avoid probate? For several reasons, probate is a good thing to avoid. These are a few reasons to avoid probate:
- It’s expensive. A routine, uncontested probate will run $3,000 to $6,000. Of this, about $500 will be out-of-pocket expenses, like court filing fees, publication fees, and fees for certified copies.
- It’s slow. A routine, uncontested probate will take 6-12 months to complete. This is caused, in part, by the 4-month period in which creditors have to file claims, and that period does not begin until notice of the probate is published in the paper.
- It’s public. Some people don’t want their estates open to scrutiny.
- It provides a forum for a malcontent heir. If you disinherit an heir, they can object to the probate without suing anyone or even retaining an attorney.
How can you avoid probate? In most cases, it is not difficult to avoid probate.
One way is to create a living trust (also known as a revocable trust) and transfer your probate assets to the trust. When a person dies with a living trust, the successor trustee can pay the remaining bills and distribute the remaining assets to the beneficiaries named in the trust. A living trust:
- avoids probate
- facilitates organization of assets
- provides for succession of management of assets
- keeps things private
- does not provide a forum for an disenchanted heir
We recommend living trusts for single people, over age 65, with probate assets exceeding $500,000. If a person owns real estate in more than one state, such as a cabin in Wisconsin or a condo in Arizona, having assets titled in a living trust will avoid probate in both states.
Transfer on Death Deed
If all you have is a piece of real estate, there are several ways to avoid probate. One way to record a Transfer on Death Deed (TODD). This is similar to having a bank account with a named beneficiary. Upon the death of the owner, the beneficiary simply files an Affidavit of Survivorship with the County Recorder.
Another way to avoid probate is to have your assets in joint tenancy. Many married couples have their house in joint tenancy. When one party dies, the surviving joint tenant simply files an Affidavit of Survivorship. If a person is single, putting property in joint tenancy is not as attractive.
Payable on Death or Transfer on Death
Another way of avoiding probate is to put a death beneficiary designation on your financial accounts. For example, at a bank, you can put a Payable on Death (POD) designation on your checking, savings, certificates of deposit, etc. At a brokerage, such as Edward Jones or Charles Schwab, you can have a Transfer on Death (TOD) agreement. This also avoids probate. The brokerage might charge you a nominal fee for this, but it is well worth it.
Life insurance is usually a non-probate asset, meaning that you don’t have to go through probate to get the death benefit. However, we have had some cases where the insured named his/her estate as beneficiary. Doing this will require a probate. Another example of where is probate is required is where the insured names Mary Smith as beneficiary, no other beneficiary is named, and Mary Smith predeceases the insured. Again, a probate would be required.
You may have a 401(k) or IRA. These accounts have named beneficiaries. Because of that, they avoid probate. However, if a person names Mary Smith as beneficiary, and no contingent beneficiary is named, and Mary Smith predeceases the account holder, a probate will be required.
In conclusion, you can see that a person may die with a million-dollar estate and not have to go through probate. Even if they don’t have a living trust, if they have a $250,000 life insurance policy payable to their spouse, a $500,000 IRA payable to their spouse of children, and a $250,000 house, they can avoid probate.