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HOW TO AVOID PROBATE

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"Probate" is not a dirty word.  It is a procedure designed to distribute your property to those designated in your will, or if you do not have a will, to your relatives according to the statute of descent and distribution.  If you make provision for your property to transfer to someone else upon your death, then that property is not included in your estate for probate purposes. 

 

The key to avoiding probate, is to make provisions for all of your assets to be transferred to someone else without the need for an order from the probate court.  How do you do that?

 

Living trust: 

A living trust is a trust that you set up while you are still alive!  A trust is a legal entity.  it has its own identity.  If you transfer all of your assets to a trust, then the trust becomes the owner of your assets.  When you die, the trust continues to own the assets and the trustee is obligated to follow the instructions included in the trust and use the trust assets accordingly.   

 

If All of your property is in a trust, you have no assets to probate and you have avoided probate.

 

If you are considering this approach, you will need to have an attorney experienced in estate planning advise you and draft the trust documents.

 

 

 

Transfer on death affidavit:

If you have an interest in real estate and you would like to have that asset go to a family member upon your death, you can prepare and file with the Count recorder, a transfer on death affidavit.  If you own that interest in real estate at the time of death, that asset can be transferred to the person named in the affidavit without on order from Probate Court. 

(You should have an attorney prepare this affidavit.)

 

 

Payable on death beneficiaries:

The terms of your accounts with banks, brokerage accounts, and IRA accounts can be set up with a designated beneficiary who  will be entitled to the money, stock, or other assets in your account at the time of your death.  Upon proof that you have died, the assets will be transferred to the named beneficiary without probate.  You should be able to arrange for a payable on death beneficiary without an attorney but you may want to get some advise as to whether such a move is right for you. 

 

Joint with right of survivorship :

If a bank or brokerage account is designated as a joint account (more than one owner) with right of survivorship, on your death, the account assets transfer to the joint owner. 

 

This information should not be relied upon for your individual estate.  It is general information that is not "legal advice" and may or may not be right for you.  If you have questions regarding whether or not there are steps that you should take to avoid probate, talk to your attorney.  If you do not have an attorney, contact an attorney experienced in estate planning.