Did you know that having a will does not mean that probate will be avoided? Not everyone has the foresight to plan for the inevitable, but I think we can all agree, we do not want our love ones to have to deal with probate court when we are gone.
So, if a will is not a mechanism of transferring your property without the need for probate, what tools are?
Here are the tools we recommend:
Adding an Additional Person to Title - If you are in title alone on your property, you can add a second person as a co-owner in title with survivorship verbiage. With the survivorship verbiage, if either of you were to pass before the other, that person's interest in the property will transfer easily to the survivor.
Ensuring your Current Deed contains Survivorship Verbiage - a simple search on your county's recorders site should reveal a copy of your current deed. The phrase to look for or have added if it is not present: “for their joint lives, remainder to the survivor of them.”
Transfer on Death Designation Affidavit - Current Owner can designate one or more beneficiaries to their property upon their death.
Transferring your Property into a Trust- this tool is more complicated as it involves the creation of a trust. The trust should name a Successor Trustee that can act on behalf of the trust after you pass.
All of the above mechanisms involve an attorney preparing the document, you and any current owners signing the document, and the recording of the document at the county you reside in.
Upon your death, your surviving loved ones, designated beneficiaries, or successor trustee would simply sign an affidavit prepared by an attorney that would get recorded at the county along with an original death certificate. This would easily transfer the property to the Surviving Owner, Designated Beneficiaries, or Successor Trustee of your Trust without the need for Probate.
So why create a will? A will is useful in making sure your wishes are followed after you pass and your assets are distributed accordingly. If it is necessary for probate to be opened because beneficiaries of all your assets are not named, a will does make the process much smoother.
Please pass this on to your loved ones and clients! If you need help with any tools mentioned above, call or email us - we are happy to assist with this! As always, if you are unsure what is the best tool for your circumstances, we highly recommend consulting an Estate Planning Attorney and a tax professional.
From experience in the title and escrow field, it is such a relief to buyers, sellers, agents, and us when tools are in place ahead of time. Probate is costly and time consuming.
See below, this is a good rule of thumb and visual to share!
