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What can cause an asset to skip probate?

As was mentioned in a past post, wills generally cannot make it so an asset isn't subject to the probate process. Today, we will discuss some of the methods that can be used to get an object to skip the probate process upon one's death.

There are a variety of different probate avoidance steps an individual could take in connection to an asset, including:

  • Giving away the asset prior to one's death. Probate only applies to assets that are in a person's estate.
  • Putting the asset into a revocable living trust. When an asset is in such a trust, the asset does not go into probate upon a person's death, but rather remains under the control of the terms of the trust.
  • Putting the asset under a joint tenancy or other joint ownership arrangement containing a right of survivorship. For such assets, when one of the owners dies, the deceased's interest in the property goes straight to the surviving joint owners and does not go into probate.
  • If the asset is an account, converting it to pay-on-death status. The money in a pay-on-death account goes straight to the named beneficiary upon the account-holder's death rather than having to go into probate.

Now, each method of keeping an asset out of probate has its own particular set of other effects. Thus, when trying to keep an asset out of probate through one's estate plan, it can be very important for a person to take these other effects into account when deciding which method to go with. Otherwise, a person could end up accidentally compromising one of their other estate planning goals in their probate avoidance efforts.

Individuals who are seeking to use their estate plan to have assets avoid probate should consider having an experienced estate planning lawyer advise them on the specifics of the different probate avoidance methods and what methods might be best for them. 

Source: NerdWallet, "5 Smart Estate-Planning Steps to Avoid Probate," James E. Salter, Feb. 10, 2016

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