Alternatives To Probate

    Some people have heard of probate problems and yet others may have had a bad experience with probate following the death of a loved one. Regardless, if you want to avoid probate at your death, then you do have multiple options.

Joint Ownership

    Many married couples own the lion’s share of their assets, with the exception of life insurance and retirement funds, in joint name with rights of survivorship. When one of the joint owning spouses dies, then the other automatically inherits the share of the deceased spouse by right of survivorship. Probate is avoided. Warning: Unless recommended after consultation with an experienced estate planning attorney, never add a non-spouse as a joint owner to any of your assets. Why? Because doing so will make such assets subject to any change of heart, divorce, lawsuit or bankruptcy of your joint owner.

Beneficiary Designations

    All life insurance and retirement funds have special beneficiary designation forms available so you can name the primary and even the contingent beneficiaries of the proceeds upon your death.
    Make sure you review these designations from time to time; otherwise they may not reflect circumstances that have occurred since your last update. For example, do you really want your ex-spouse to inherit your 401k?

Transfer on Death

    A number of states now permit non-probate transfers via transfer on death designations for everything from checking accounts to real estate and everything in between. Very similar to the beneficiary designations for life insurance and retirement funds, all that is needed to transfer the assets outside of probate is your death certificate. Be sure to consult an experienced estate planning attorney to determine whether any of your assets are eligible for transfer by this method.

Revocable Living Trusts

    A revocable living trust (RLT) is a legal agreement involving three parties: the Trustmaker (also known as a Grantor, Trustor or Settlor), the Trustee and the Beneficiary. Initially, upon its creation, the Trustmaker, Trustee and Beneficiary are one in the same person. After the Trustmaker funds the RLT (i.e., retitles assets into the name of the RLT), the Trustee manages and distributes the RLT assets according to the trust instructions. This is a critical step, much like putting fuel into a brand new automobile. If the Trustmaker/Trustee becomes incapacitated, then a successor Trustee seamlessly manages and distributes RLT assets for the benefit of the Trustmaker/Beneficiary. Finally, upon the death of the Trustmaker/Trustee/Beneficiary the RLT becomes irrevocable and the successor Trustee seamlessly manages and distributes RLT assets for the successor Beneficiary without probate.

Summary

    The advantage of probate versus the alternatives to probate is a complex subject. This is not a do-it-yourself project. Seek appropriate legal counsel to help determine what is best for your unique circumstances.