Question: My parents’ estate went through probate. It was a nightmare! How do we make sure our estate does not go through probate? We want to make it as easy as possible for our children.
Answer: I hear this a lot! I think everyone wants to make it as easy as possible for their children when they pass. There are a few ways to avoid probate. There are Trusts,
Lady Bird Deeds, and Beneficiary Designations. Let’s take a look at a Trust: The most common estate planning trust is what is called a revocable trust. It is also referred to as a “living” trust. The trust holds legal title to your property while you are alive. You, as trustee, control what happens to your property while you are alive and when you pass away. You can still sell your property and buy new property while you are living. When you pass away, then the trust become irrevocable and no changes can be made. Along with avoiding probate, a revocable trust allows you to control what happens to your property after you die. You could have distributions of money made to someone every five years after you die; or leave money to grandchildren for college or a trip, or keep land in the trust so it cannot be sold. There is a lot of flexibility and
control with a trust.
A Lady Bird Deed is a deed whereas you basically name a beneficiary on your real property (your home or land). You still maintain the right to live there during your lifetime and you can sell the property or do whatever you want with it. But if you still own it when you die, it automatically transfers title to whoever you named as the beneficiary; such as your children. You just have to remember that it is only a deed; it is not a Will. You cannot have contingent beneficiaries or alternate distributions, etc.
The last one is Beneficiaries Designations. These are used on investments, life insurance, 401(k), IRA, checking and savings accounts, etc. Whoever you have named as a beneficiary will receive the money directly; it will not go through any estate. Make sure that your beneficiary designations are up to date. If the beneficiary you name dies before you do, then the asset may have to go to probate. I would advise you to see an estate planning attorney. They can let you know your options.
Michael B. Walling is an Elder Law attorney with an advance Master of Laws degree. He manages The Elder Law Center and the law firm of Michael B. Walling, PLC. Mr. Walling is also a part-time Professor at Western Michigan University. Please email any questions you would like addressed to: info@wallingplc.com. This column is intended for general information purposes only and should not be considered as legal advice to any particular person.
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