To Avoid Probate or Not?
Probate now rises to the forefront in many estate plans. With only a small minority of estates at risk of owing federal estate taxes, probate is the greater threat to separating your wealth from the objects of your affection and delaying the transfer. Regardless of the value of your estate, you need to spend time considering probate.
The probate estate is different from the federal taxable estate. The differences between the two are important.
The federal estate tax is the way the IRS determines the value of the assets you owned and the amount of tax, if any, due on them.
Probate is a state process. It is used to clear the legal title of the assets you owned, ensure that your debts are paid, and transfer the remaining assets to either your designated beneficiaries or to the beneficiaries set by state law when you don’t have a will.
The federal taxable estate is defined more broadly, so it’s not unusual for an asset to avoid probate but be included in the gross estate for federal estate tax purposes.
Some states revised their probate process in the last few decades in line with the Uniform Probate Code. In these states, probate can be relatively fast and inexpensive, especially for all but the most valuable estates. In these states, avoiding probate might not be worth the costs or hassles involved. In other states, however, probate retains its historic processes and can be both long and expensive.
In addition, probate is public. Your will is filed with the probate court and generally is a public document, available to all, as are the proceedings and other documents filed in the probate process. Some people believe probate is worth avoiding for the privacy aspect.
Probate isn’t all bad. Some people believe it is an advantage to have everything about the estate and how it is distributed in the public record and reviewed by the court. There’s less of a chance for shenanigans by the executor or others. Anyone who disagrees with how things are being handled can file a complaint with the court. The probate process also certifies title to the assets, making it more difficult for someone to challenge the ownership.
You should discuss both the advantages and the potential costs and delays of probate as part of the estate planning process. Have a full discussion with your planner to determine how much of your estate should go through probate.
Probate is not an all-or-nothing choice. Most estates are partly subject to probate and partly avoid probate. Some widely-owned assets such as IRAs and annuities pass to their next owners automatically and without probate.
The question for you is how much of your estate you want to avoid probate.
When you spend time in more than one state, especially when you own real estate in two or more states, consider the probate situation in each state. Generally, the bulk of your estate is subject to probate in the state where you were a resident or domiciled. But real estate is probated in the estate where it is located. So, without proper planning your estate might be subject to probate in more than one state.
There are many ways to avoid probate.
As I said, some types of property avoid probate automatically if you designate a beneficiary other than your estate. These include pensions, IRAs and 401(k)s, annuities, and life insurance benefits. These pass to the next owner by contract or operation of law and aren’t affected by your will or probate.
Probate also can be avoided by changing the form of property ownership. The two most common strategies are to have assets owned by a living trust or through joint title.
Revocable living trusts. The prime and comprehensive way to avoid probate is to have your assets owned by a revocable living trust.
The typical revocable living trust names the creator (you) as also the initial trustee and beneficiary. If you’re married, your spouse also might join in each of these roles but in some estate plans each spouse has a separate trust. You transfer ownership of assets to the trust and manage them through the trust. Since the trust is revocable, you can change the terms and even revoke the trust at any time.
The trust agreement has many of the key features of a will. It states who will be trustee after you or how the successor trustee will be selected. The agreement also names the beneficiaries who will receive the assets after your demise. The beneficiaries could be individuals or other trusts for the benefit of individuals. The trust also can convert into a different type of trust after your passing. Your will doesn’t have a direct effect on how the assets owned by the trust or disposed of, unless you put that in the trust agreement.
The living trust (technically the trustee acting for the benefit of others) owns the property. You as an individual don’t own the property outright, so it is not included in your probate estate. (Under the federal estate tax, however, you are considered the owner; all the trust property is included in your federal estate. Under the federal income tax, all trust income and gains are taxed to you.)
One reason to use a living trust is it makes a “will contest” more difficult. Challenging a will and airing all a family’s dirty laundry is easy in probate court. It is more difficult to sue under a living trust, and there are far fewer cases of a disgruntled heir successfully altering the terms of a living trust or challenging a trustee’s actions.
A living trust helps in disability planning by providing a process for a successor trustee to take over should the original trustee become incapacitated.
Living trusts aren’t a panacea.
You must transfer to the trust legal title of all the assets you want to avoid probate. That means changing the deeds to real estate, titles to and registrations of automobiles, and names and tax identification numbers for financial accounts. Checks need to be printed with the trust’s name on them, not yours. Other assets without paper legal titles can be transferred to the trust by attaching a list of them to the trust agreement.
Many living trusts are dormant or “empty” because the creators never transferred legal title to their assets. They found the process too burdensome, so they paid money to have trusts created that have no effect.
I’ve talked to people who became successor trustees after the passing of their spouses. Though the ownership transition using a living trust is supposed to be smooth, they didn’t find it that way. In particular, financial services companies make it easy to set up an account in the name of a trust but require rigorous proof that the person claiming to be the successor trustee really is entitled to that role. The proof required varies among the firms. The original trustee should ask financial services firms how they will confirm a successor trustee and do in advance what he or she can to ensure a smooth transition.
While privacy is an advantage of a living trust, it can be disadvantage. It could make it easier for the successor trustee to hide or loot assets or not give a beneficiary all that the trust creator intended. The trust agreement can provide that beneficiaries have the right to an accounting or audit. If those rights aren’t in the trust agreement, however, a beneficiary has to sue the trustee just to be allowed to look at the records. Plus, since the trust doesn’t have to be recorded anywhere, the beneficiaries might not learn about it or know the details.
Joint title. Another way to avoid probate is joint ownership with right of survivorship. The surviving co-owner automatically takes full title after the other owner does. Joint title is most often used with real estate and financial accounts.
A potential problem with joint title is it is harder to make a change than it is to revise a will or living trust. When the federal estate tax is a risk there also can be tax disadvantages to joint title. I won’t discuss that in detail here because its affects few people now.
Other ownership entities. Some of probate’s publicity and hassles can be avoided by having your assets owned by entities such as corporations, partnerships, and limited liability companies. The ownership shares will be in your name and included in the probate estate, but the details of what the entities own might escape public review. This also could make probate more efficient. But there are costs to creating and maintaining these entities that must be balanced against these advantages.
Some of your assets automatically avoid probate. Whether you want to avoid probate with the rest of your estate depends largely on your privacy concerns, disability planning, and the probate process where you live. If privacy is not a concern and you live in a state with modern probate processes, avoiding probate might not be worth your while. In states with the old rules, avoiding probate is essential.
Avoiding probate is not an automatic decision these days. You should discuss the pros and cons with your estate planner and see what is best for your situation. Even if you plan to maximize probate avoidance, you still need a will. All your assets won’t avoid probate. You also need to address issues such as paying debts and taxes, guardianship of minor children, and other matters.