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How Can I Avoid Probate?

Horn & Johnsen SC > Horn & Johnsen News  > How Can I Avoid Probate?

How Can I Avoid Probate?

Estate planning truly is the ultimate gift for your loved ones, and a comprehensive estate plan should always include a review of the titles and beneficiary designations for all assets to ensure they are consistent with your estate planning objectives. Otherwise, unintended consequences may ensue.

The manner in which your assets are held will determine whether or not each asset will go through probate upon your death. Any asset titled in your name alone, with no designated beneficiary, will go through probate. Further, any asset designating your estate as the named beneficiary will also go through probate.

Assets titled in the following manner will not go through probate upon your death:

  • Joint Tenancy – If you hold an asset in joint tenancy, then upon your death, title to that asset will pass outside of probate to the surviving owner(s).
  • Payable on Death (POD) – If you have designated a “POD” beneficiary on your bank account, then the account will be paid on your death directly to the named beneficiary(ies).
  • Transfer on Death (TOD) – If you have designated a “TOD” beneficiary on your investment account or real estate, then that asset will be transferred on your death directly to the named beneficiary(ies).
  • Beneficiary Designations – If you have named a direct beneficiary on your life insurance policy or retirement account, then on your death that asset will pass directly to the named beneficiary(ies).
  • Living Trust – Any asset titled in the name of your Living Trust will not go through probate. The only documentation your successor trustee will need at the time of your death will be your death certificate and your certificate of trust. The asset will ultimately pass to your beneficiaries privately and according to the terms of your Living Trust.

Although avoiding probate sounds great and is often a good idea, it should notalways be the primary objective when creating ownership arrangements and designating beneficiaries. For example, if you have detailed provisions in your Will regarding the distribution of your assets upon your death, you could unintentionally override these provisions through inconsistent ownership arrangements or by designating direct beneficiaries on your assets.

In order for your estate plan to work the way you intended, all of the pieces to your estate planning puzzle must fit together. Ownership arrangements and beneficiary designations are an essential piece to this puzzle.

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