When someone who’s written a will passes on, and he/she owns property in his or her own name, a court process known as probate is generally required to determine who will receive the property. Conversely, if someone dies intestate (without a will), a probate process is also required.
However, it is possible to legally avoid probate, and still pass your property on. Here are a few ways. (Keep in mind, though, that probate can actually be preferable in certain circumstances; only an Elder Law attorney can tell you for sure.)
JOINT TENANCY: Adding another person as joint owner – “joint tenant with rights to survivorship” – will negate the need for probate. The only problem? Even while you’re still alive, the other “owner” has access to the assets… and those assets are not only subject to his claims, but those of his creditors, as well.
BENEFICIARY DESIGNATIONS: This allows you to add, for example, a Transfer On Death (TOD) beneficiary to your car; Pay on Death (POD) beneficiaries to your bank accounts; and Beneficiary Deeds to real estate (in certain states). Simply put, Beneficiary Designations allow you to name individuals to inherit your property when you die, without allowing them current ownership. Possible drawbacks? Sometimes the estate doesn’t end up divided according to your wishes.
REVOCABLE LIVING TRUST: This document allows you to name someone (generally yourself) or a bank as “trustee.” You can then transfer property into the trust, and manage/distribute it according to the terms in the trust. This mechanism affords you the opportunity to specify to whom your property should pass on your death… lessening the possibility of family conflict. And it affords you the opportunity, as well, to avoid some of the tax hits associated with joint titling and beneficiary designations.
LAST WILL AND TESTAMENT: Remember – if you’ve listed beneficiaries for your assets, and there’s a conflict between those designations and your Will, those assets will be distributed to those beneficiaries on your death. They will not be subject to your Will!
INCOMPETENCY: This is when it’s important to have an effective Power of Attorney. If you’re incompetent to make decisions regarding your property or finances, a Power of Attorney will have already designated someone – of your choice – to make these decisions. Among these decisions are changing a trust, or adding a beneficiary. Keep in mind that your designee (agent) must act according to the wishes expressed in your Will.
SPOUSAL ELECTIVE SHARE: If you’re married, you need to consider what your spouse is entitled to inherit from you by law, before titling/adding beneficiaries to your assets. A word of warning: If you or your spouse applies for medicaid, and the “spousal elective” assets have not been transferred to your spouse, Medicaid may nonetheless view that as a transfer of assets. And your spouse may not qualify for benefits.
Avoiding probate can be very tricky, very time-consuming, and – if you make the wrong moves – it can cost you everything you’ve worked for.
The best solution? An Elder Care attorney.
At The Law Offices of Alice Reiter Feld & Associates, we’ve been practicing Elder Law – and only Elder Law – for 33 years. That’s the only thing we do. And we’ve helped thousands of South Florida families navigate the winding Elder Care Journey – from probate, estate planning, powers of attorney, wills, and trusts, to asset protection, long-term care planning, and Medicaid and the VA.
We’ve been here for 33 years… and we’ll be here for you. We’re only a phone call away.