Although there are several ways to avoid a probate, the best way to do so is generally by setting up a revocable living trust for you and your family. There are three other ways to avoid a probate, but, as you will see, each of these other options has significant drawbacks.
Give It Away During Your Lifetime
One way to avoid a probate is simply to give everything away during your lifetime. Because this is generally not a good idea for most people as they need something to live on, I do not recommend this option. There also may be significant gift tax and other tax consequences in making larger gifts during your lifetime.
Title Your Assets As Joint Tenancy with Right of Survivorship
A second way to avoid a probate is to make sure that all of your assets are titled as “community property with right of survivorship” or “joint tenancy with right of survivorship”. After you pass away, all of your assets will pass to the surviving owner by operation of law. However, there are significant problems with this approach too. First, this may work well for a husband and wife, but it does not work so well for others. Naming a child as a joint tenant means that these assets could be subject to collection by your child’s creditors if your child ever has financial difficulties (such as a divorce, lawsuit, or bankruptcy). Also, if you are counting on your child to divide up the funds in that bank account or to sell the home and divide up the proceeds among his siblings, think again. After your death, the surviving joint tenant is the legal owner of that property, and you are relying on her to do the “right thing” in dividing up these assets according to your wishes. With clients who did not do the correct type of planning, I have personally seen this type of planning go awry many times over the course of my career. As a result, I do not recommend this option either.
Use a Beneficiary Designation to Accomplish Your Wishes
A third way to avoid a probate is to make sure that you have beneficiary designations for all of your assets, so that these assets will pass to your intended beneficiaries after you are gone. This works well for life insurance policies, IRA’s, annuities, and even for real estate with the help of a “beneficiary deed”. However, there are some drawbacks to this option too. First, some assets do not have beneficiary designations. Second, even if they do have beneficiary designations, maintaining and keeping up with these beneficiary designations may be difficult to do over time if you change your mind. Next, you may want to have more flexibility for determining what happens if one or more of your beneficiaries passes away. Finally, if you become incapacitated, these assets may be more difficult to access for your care with this option. For these reasons, I also do not recommend this option.
Establish a Revocable Living Trust – The Best Option
Revocable living trusts are generally the best option for avoiding a probate. Although there are some additional costs to set up the trust and fund it ahead of time, and it may not work for everyone, a trust will allow you to pass on all of the assets titled in the trust to the beneficiaries of your choice without needing to go through any probate process. This can save your estate additional administrative costs and time. In addition, the administration of a trust is private and does not require any court filings. Finally, a revocable living trust may also save you estate taxes (if applicable), will work well if you are ever incapacitated, and will provide you with lots of flexibility in distributing your assets to your beneficiaries.
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