So often clients come to us indicating they want to “avoid probate” but they don’t always know what that means. The section on Wills describes a bit of the probate process, because if you have a Last Will and Testament, you will likely have assets going to probate. Anything a person owns at the time of his or her death will have to go through probate, and as discussed in the Wills section, there are drawbacks to that process. So how do we avoid probate?

Any asset that has a joint owner with the decedent will not go to probate. Think of the death of a spouse. Most assets are titled jointly, including the house and bank accounts. These avoid probate because the survivor simply needs a death certificate to remove the decedent’s name. Assets with a beneficiary, such as life insurance and retirement assets also typically do not go through probate (unless a listed beneficiary is predeceased). 

People often try to avoid probate by listing a child or other relative on assets, such as bank accounts and even real estate. While this may successfully avoid probate, this type of planning has plenty of pitfalls.

The best way to avoid probate, by our experience, is with a revocable living trust. Once your trust is signed, you can transfer assets to your trust, so at the time of your death, you do not own anything in your own name. You maintain control of all of those assets during your lifetime, since the trust is your document and it is revocable. You also retain control after you die because your trust document dictates what happens to your assets after your death.