Minimizing Probate When Setting Up Your Estate

For some estates, probate takes very little time and few financial resources, for others, probate can be a nightmare. Probate subtly reduces the value of many estates. It can take more than a year in some cases to work through all the details, and attorney’s fees, appraiser’s fees, and court costs may eat up as much as 5% of a decedent’s accumulated assets. And while decedents are waiting for assets to become available, they’re stuck footing the bill for funeral costs to the utility bill. So it pays to minimize probate if possible and there are ways to do that with proper planning. ^1,10

What do those fees pay for? In many cases, routine clerical work. Few estates require more than that. Heirs of small, five-figure estates may be allowed to claim property through affidavit, but this convenience isn’t extended for larger estates. And courts throughout the nation are in financial crisis so they’re looking for extra funds. One easy way for courts to solve their financial woes is to increase court filing fees. The costs add up and they’re payable from your estate. ¹⁰

So how can you exempt more of your assets from probate and its costs? Here are some ideas.

Joint accounts. Married couples may hold property as a joint tenancy. Jointly titled property includes a right of survivorship and is not subject to probate. It simply goes to the surviving spouse when one spouse passes. Some states allow a variation called tenancy by the entirety, in which married spouses each own an undivided interest in property with the right of survivorship (they need consent from the other spouse to transfer their ownership interest in the property). A few states allow community property with right of survivorship; assets titled in this way also skip the probate process.^2,3,11

Joint accounts can still face legal challenges. A potential heir to assets in a jointly held bank account may claim that it is not a "true" joint account but a "convenience account" where a second account-holder was added just for financial expediency (an adult child able to make deposits and pay bills for a mom or dad with dementia, for example.) Also, a joint account with right of survivorship may be found inconsistent with language in a will. Taxes must be paid on joint accounts by the surviving account holder. This is an important consideration in estate planning to avoid probate.^4,11

POD & TOD accounts. In most states, payable-on-death and transfer-on-death forms are used to permit easy transfer of bank accounts and securities (and even motor vehicles in a few states). As long as you live, the named beneficiary has no rights to claim the account funds or the security. When you pass away, all that the named beneficiary has to do is bring his or her I.D. and valid proof of the original owner’s death to claim the assets or securities.^5,12,14

Gifts. For 2021, the IRS allows you to give up to $15,000 each to as many different people as you like, tax-free. By doing so, you reduce the size of your taxable estate and you avoid probate for the assets you transfer as gifts while you’re still alive. Please note that gifts over the $15,000 limit may be subject to federal gift tax of up to 40% and count against the lifetime gift tax exclusion, currently set at $11.18 million per individual and $22.36 million per married couple.^6,13,14

Revocable living trusts. In a sense, these estate planning vehicles allow people to do much of their own probate while living. A revocable living trust is a written document that covers you while you’re living, if you become mentally incapacitated, and after you die. The grantor - the person who establishes the trust - funds it while alive with up to 100% of his or her assets, designating the beneficiaries of those assets at his or her death. (A pour-over will can be used to add subsequently accumulated assets; these assets will be probated, however.)^7,12

The trust owns assets that the grantor once did, yet the grantor can use these assets while alive. When the grantor dies, the trust becomes irrevocable and its assets are distributed by a successor trustee without having to be probated. The distribution is private (as opposed to the completely public process of probate) and it can save heirs court costs and time. Be sure to have each of your assets titled in the name of your trust in order to avoid probate. ^7,12,14

Are there assets probate doesn’t touch? Yes, there are all kinds of non-probate assets. The common denominator of a non-probate asset is a beneficiary designation. By law, these assets must pass either to a designated beneficiary or a joint tenant, regardless of what a will states. Examples: jointly titled real property, jointly held bank accounts with right of survivorship, POD and "in trust for" accounts, any asset held within a revocable or irrevocable trust and most IRA, 401(k) and 403(b) accounts.⁴

Make sure to list/update retirement account beneficiaries. Make sure to list/update retirement account beneficiaries. When you open a retirement savings account (such as an IRA), you are asked to designate eventual beneficiaries of that account on a form. This beneficiary form stipulates where these assets will go when you die. A beneficiary form commonly takes precedence over a will, because most retirement accounts are legally defined as non-probate assets. ^8,12

Your beneficiary designations need to be reviewed, and they may need to be updated. You don’t want your IRA assets, for example, going to someone you no longer trust or love.

If you leave a beneficiary form blank, the account or asset in question may simply pass to your estate after you die. It will then be subject to probate, because its distribution will thereby be governed by your will and not a beneficiary designation. With a workplace retirement plan, your spouse is the default beneficiary even if you do leave the beneficiary form blank (unless he or she declines to be the beneficiary of those assets in writing). If you leave the beneficiary form for your IRA blank, the IRA balance may be distributed according to the default provision set by the account custodian (the brokerage firm hosting the IRA account).^9,15

To learn more about strategies to avoid probate, consult an attorney or a financial professional with solid knowledge of estate planning.

Citations.

1 - nolo.com/legal-encyclopedia/why-avoid-probate-29861.html

2 - info.legalzoom.com/difference-between-community-property-rights-survivorship-vs-joint-tenancy-21133.html

3 - law.cornell.edu/wex/tenancy_by_the_entirety

4 - nyparenting.com/stories/2013/5/fp_askattorney_2013_05.html

5 - nolo.com/legal-encyclopedia/avoid-probate-transfer-on-death-accounts-29544.html

6 - forbes.com/sites/deborahljacobs/2013/11/01/the-2013-limits-on-tax-free-gifts-what-you-need-to-know/

7 - newyorklife.com/nyl/v/index.jsp?vgnextoid=7d792f5a919d2210a2b3019d221024301cacRCRD

8 - nj.com/business/index.ssf/2013/12/biz_brain_beneficiary_designat.html

9 - forbes.com/sites/deborahljacobs/2014/01/03/how-to-leave-your-ira-to-those-you-love/

10 - thebalance.com/top-reasons-to-avoid-probate-3505264

11 - thebalance.com/what-happens-to-a-joint-account-when-an-owner-dies-3505233

12 - thebalance.com/ways-to-avoid-probate-3505251

13 - nolo.com/legal-encyclopedia/avoid-probate-how-to-30235.html

14 - wsj.com/articles/wsj-tax-guide-2019-estate-and-gift-tax-11550235603

15 - marketwatch.com/story/what-happens-if-you-have-no-ira-beneficiary-you-probably-dont-want-to-find-out-2018-08-20