Can Probate Be Avoided?

The process known as Probate is essentially the filing of a lawsuit in Probate Court to settle an estate either according to the terms of someone’s Will or through the Laws of Intestacy, if they died without a Will. As Probate can be quite costly in terms of both time and money, this question often arises: “Can Probate be avoided?” The answer is yes.

Option one: If you own real or personal property (house, bank account, car, investment account, etc.) as a “Joint Tenant with Rights of Survivorship”, then upon your death, that property will pass by operation of law to the surviving Joint Tenant (owner). The downside of owning something with another person is this: If either of you is sued and a money judgment is obtained, that judgment can include any assets that are jointly owned. For example: your daughter’s name is on your deed and she is then sued – you can lose your house because her name is on your deed. Same for bank accounts.

Option two: Real and personal property that is held in a trust will not require Probate. One type of trust, called a Revocable Living Trust, is an alternative to a Will that allows you to maintain full control of your assets for as long as you are able to do so and, upon death, will allow disposition of your assets to whom you direct, free of Probate.

Additionally, be sure you have designated Beneficiaries (both “Primary” and “Contingent”) for Retirement Accounts (IRAs, 401(k) accounts, Annuities) and Life Insurance. If you have properly designated Primary and Contingent Beneficiaries, then these type of accounts will bypass Probate after your death.