Should you avoid probate, and if so, how?

PROBATE. The mere word sends shudders down many people’s spines. Your friends and neighbors have probably told you horror stories about experiences they have had with a loved one’s probate. It seems today that everyone is telling you to avoid probate. But should you avoid probate? The only way to know the answer to this question is to understand what the probate process is. This is a decision that involves the ownership and disposition of your assets, and should be a decision made only by you, not by the media, not by your neighbors or friends, and not by your family.

What is probate? Probate is simply the legal process whereby your will is determined to be valid, your assets are gathered together and inventoried by the Probate Court, your debts and taxes are paid, and your assets are finally distributed to the rightful heirs. Only assets in your individual name alone are probated. Therefore, if a bank account is titled in the name of “John Smith,” when John dies, that bank account will have to pass through probate in order to be distributed to the rightful beneficiary. The Probate Court judge monitors the probate process. A person named in your Will to handle your probate estate is called an “Executor.”

The Executor prepares and files an Inventory of the assets held in your name alone at the time of your death. The Executor must pay any final expenses and file an Estate Tax Return for the estate. Please note that whether or not probate is avoided, Estate Taxes generally cannot be avoided. Finally, the Executor handles the most important part, distributing your assets to the rightful beneficiaries.

There are costs and other issues involved in the probate process which must be evaluated. The main cost in the probate process is attorney’s fees. Attorney’s fees can range anywhere from 2% to 10% of the total value of the assets for probate purposes. Additionally, court costs can be expensive, often ranging as high as $400-$500 for the probate. Finally, your Executor is entitled to a percentage fee ranging from 2% to 4% of the assets. The probate process itself can take as long as six months to a year in simple cases and as much as three years in more complicated probate estates or if litigation is involved. Finally, another problem with the probate process is that the court filings all become public record. Your neighbors can go down to Probate Court, pull your file, and see what assets you owned, how much your bills were, and who is receiving your estate. Many people do not like the public record aspect of the probate process. On the other hand, if there are family issues or complicated assets, the court oversight in probate might be desirable.

If you determine that you want to avoid probate, there are various ways to achieve that goal.

Assets on which you name a beneficiary do not pass through probate. For example, retirement plans, IRAs, annuities and life insurance which are owned by you, but which have a named beneficiary, do not go through probate. These assets pass to the surviving beneficiary by virtue of the contract which you enter into with the financial institution holding the asset. For assets such as these, it is important to be sure that a beneficiary is always named. Additionally, it is always important to name a contingent or successor beneficiary on these types of assets.

For real estate, bank accounts, stocks and bonds, and other types of liquid assets, many people swear by owning these assets “jointly with right of survivorship.” Ownership in this manner does avoid probate; however, it can have some unexpected adverse consequences for you. For example, if you have a bank account held jointly with rights of survivorship with your son, you both are owners on the account and have complete access to all of the money. Your son could take your money and close out the account. Additionally, if he has creditors pursuing his assets, they may also pursue your bank account because he is a joint owner on it.

These types of problems can be avoided by avoiding joint ownership. Instead, you should own these assets individually, but name a beneficiary to take those assets upon your death. For bank accounts, this means titling a bank account in your individual name with a Payable On Death (“POD”) designation to a named beneficiary. For real estate, cars, stocks and other securities, it means titling the assets in your name individually with a Transfer On Death (“TOD”) designation to a named beneficiary. This prevents your beneficiary from having any ownership rights in your assets until your death, at which point they inherit the asset outright. Keep in mind, however, that if your named beneficiary dies before you do, and you fail to name another beneficiary, your assets will have to go through probate because it will be in your name alone with no living beneficiary.

There are drawbacks to such asset titling, as noted above. In many circumstances, probate avoidance using a Trust Agreement can be a better way to hold your assets and also can allow you to achieve significant estate tax savings in the process. A Trust Agreement is simply a legal document which has three parties to it: (1) the Settlor (that’s you) who sets up the Trust; (2) the Trustee (often the same person as the Settlor) who administers the Trust according to its terms; and (3) the Beneficiary (again, usually the same person) of the Trust for whom the Trust is held. The most important part of establishing a trust is the funding, titling your assets into the trust, which is necessary in order to avoid probate. A trust can be a great probate avoidance, property management, and estate tax savings tool.

Ultimately, the choice is yours, with input from your estate planning team: your attorney, accountant, tax preparer and family.

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