Probate is defined as the official establishment of the validity of a will. Probate may involve a hearing where heirs and witnesses may challenge portions of a will, or the whole thing, as being invalid for a number of reasons. Those reasons may include allegations that the testator (writer of the will) had lost mental capacity before signing the will, that the will was somehow manipulated, or that there is a newer version. Probate fights can be some of the nastiest in the legal world (fights with family always seem to be the worst), but there are ways you can bypass the probate system.
The first method for avoiding probate is to simply gift your possessions to those you want to receive them while you are alive. These gifts can rarely be challenged unless there are capacity issues involved, and you get to see the joy on your loved ones’ faces when they receive their gifts. However, this won’t work in all situations as some don’t wish to part with their possessions prior to death and many of us die unexpectedly.
A second way to avoid probate is to make sure all financial accounts you own (checking and savings, investment, etc.) have a transfer on death designee. You can make these designations with the financial institution that maintains your account, and ownership will transfer automatically upon death. You can even set up separate savings accounts and put different beneficiaries on each, so you get to decide how much each of your heirs receives.
A third way to avoid probate involves deeding real estate appropriately. If you want to pass your real estate to a certain person, you can deed that real estate to both you and the intended heir as joint tenants with rights of survivorship. This way, rather than have the real estate pass through probate, you will ensure that your joint tenant(s) become(s) the sole owner(s) upon your passing.
A fourth way to avoid probate involves setting up a trust. You can set this up while alive. You can place all of your assets (with a few restrictions) in the trust, name yourself the initial trustee and beneficiary, and then either name a successor trustee and beneficiary when you die or set the trust to terminate upon your death. You would then set, in the trust documents, the instructions for disbursing the property in the trust.
None of these methods will work for every situation, and a proper estate plan will almost certainly require the use of multiple strategies for properly distributing your assets in the quickest and most efficient manner possible after your death.
This McNeely Law LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.