Can you really avoid probate? You must understand that this phrase is a bit misleading; there is really very few cases where probate can be avoided entirely. In some states, if the deceased has a very small estate and has no debts, probate may not be required. In most cases, however, probate cannot be entirely avoided. The real meaning of the phase "avoiding probate" however, is hidden in the way you take steps to remove some of your property from the probate category. In other words, probate may proceed, but without some of your property.
What is the purpose of probate?
As with most laws, those that deal with the estate of a deceased person are old and often out of date. That being said, there is really no better legal method available to deal with the assets and the debts of the deceased. Probate means that debtors get their money and that beneficiaries get their inheritances. You can do little to avoid this process, but you can use other legal measures to deal with your property after your death.
Here are a few, beginning with the easiest and quickest to accomplish.
Here, the accounts in question are your checking and savings accounts at the bank and your investment and retirement accounts at the brokerage. Each of these institutions have forms at the ready for you deal with the accounts after your death. You should understand that if these accounts are allowed to become part of probate, they will be automatically frozen at the time of your death. Using either a transfer-on-death or payable-on-death designation on the account makes them available to your loved ones as soon as a death certificate can be produced. This gives your beneficiaries almost instant access to needed funds and keeps them from having to wait for the several-month probate process to be complete. You can name as many people you like, and the accounts will be divided up equally.
Real Estate Deeds
For many, real estate makes up a great deal of the total value of the estate. You can make changes to your deeds that will address the property simply by having the deed altered, sometimes known as a "quit claim". There are too many deed variations to name, and they all come with their own benefits and precautions, so speak to an estate attorney about changing your real estate deeds to provide a smooth transition after your death.
A trust can come very close to doing everything a will can, but without the need for probate. A revocable trust can cover all of your property: homes, cars, jewelry, art, pets and more. You can add the property and who you wish to have it upon your death. Furthermore, a trust allows you to control how and when the property is dispersed. For example, you can have the funds set aside (and held in the trust) to be given to a child as they complete each year of college. Any items mentioned in the trust supersedes mention in the will, and the items become available upon the death.
Contact local estate planning services to learn more about these and other ways to keep property out of probate.