Probate Avoidance with Real Estate
Contributor: Maria L. Shinn
"How can I avoid probate with my real estate?"
I'm asked this question a lot. After your death, your heirs can avoid Probate Court with the transfer of your real estate in the following ways:
- A Trust. If you create a Trust and properly fund the Trust with your real estate, you will avoid probate. The beauty of a Trust is that you can allow your Successor Trustee to do a number of things with the property after you are gone. The Successor Trustee can transfer the real estate pursuant to the terms of your Trust, manage the real estate and allow your children to live in the residence rent-free, rent the real estate to generate rental income, or sell the real estate when the market is favorable and distribute the net proceeds per your instructions.
- TOD Affidavit. If you sign and record a proper Transfer on Death Designation Affidavit at your county's Recorder's Office, the surviving beneficiaries named in the Affidavit will inherit the real estate automatically upon your death. The surviving beneficiaries need to file another Affidavit and a certified death certificate at the Recorder's Office to add their names to the public record as the new owners of your real estate.
- JTWROS. If you own the real estate jointly with someone else with rights of survivorship, you will avoid probate at your death. The surviving owner will own the entire parcel after your death and will need to file an Affidavit and a certified death certificate at the local Recorder's Office.
Avoiding probate is the number one goal of most of my clients. It has to be done correctly, however, or your assets will be distributed through the Probate Court process. I would be happy to discuss probate avoidance with you and develop a personalized estate plan which meets your needs and goals. Please contact me today to get started!