Avoiding Probate

Q: Last week you talked about probate.  That sounds like something I should avoid.  How do I avoid probate?

A: You are correct, probate is something that typically should be avoided.  I, as an Elder Law Attorney, view probate as a failure to plan, or as a last resort.  Remember that probate is to get things that are “stuck” in the name of the person who died to someone else.  We can fix this problem if we make sure that assets are not “stuck”. 

The easiest way to do this is to make sure the items go to the person you want to get them automatically at the time of your death.  You can do this by beneficiary designations or Payable on Death (POD).  Don’t simply add a person’s name to your account because it then becomes their account and you could lose your money to that person.  A POD designation is a much preferred way. 

You can’t make your house POD to your heirs.  However, we can do something close.  It’s called a Life Estate Deed.  We give the house to the heirs of your choice with the right for you to live there as long as you are alive.  At your death it goes to your children automatically.  There are some drawbacks to this as for as ease of selling it and with Medicaid.  You should only do this deed with advice from an Elder Law Attorney due to some of the negative implications.

We can also do a Revocable Living Trust.  This allows you to put your assets in a separate entity that you will control but at your death, it goes to your heirs automatically.  Not everyone needs a trust, but if you do it will allow you to avoid probate also.  Many people come into the office wanting a trust, but many times there are ways of avoiding probate without the cost and administrative issues of owning a trust.  Your situation will determine that only after a thorough consultation with an Attorney.