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Checklist: Probate Avoidance Checklist

Probate avoidance refers to estate planning strategies aimed at minimizing or entirely bypassing the legal process of probate, which involves the court-supervised distribution of a deceased person’s assets.

Common methods include establishing living trusts, joint ownership of property, and designating beneficiaries on financial accounts and life insurance policies, thus facilitating the transfer of assets outside of probate upon death.

By following the checklist below, individuals can implement proactive measures to minimize the impact of probate on their estate and streamline the transfer of assets to their intended beneficiaries

  • Familiarize yourself with the probate process in your jurisdiction, including its purpose, procedures, and potential drawbacks.

  • Review your estate planning documents, such as wills, trusts, and beneficiary designations, to determine their potential impact on probate.

  • Explore the option of creating a revocable living trust to hold and manage your assets during your lifetime and distribute them to beneficiaries upon your death without going through probate.

  • Transfer ownership of assets to your revocable living trust by re-titling them in the name of the trust.

  • Ensure that all relevant assets, such as real estate, bank accounts, and investment accounts, are properly funded into the trust.

  • Consider holding assets jointly with rights of survivorship to allow them to pass directly to the surviving joint owner(s) upon your death, avoiding probate.

  • Designate beneficiaries for assets that allow beneficiary designations, such as retirement accounts, life insurance policies, and payable-on-death (POD) or transfer-on-death (TOD) accounts.

  • Research whether your state offers simplified or expedited probate procedures for small estates that fall below certain thresholds.

  • Determine whether your estate may qualify for these procedures and what steps are required to take advantage of them.

  • Consider gifting assets to intended beneficiaries during your lifetime to reduce the size of your probate estate.

  • Be mindful of gift tax implications and consult with a tax professional if necessary.

  • Consider appointing a corporate trustee or professional fiduciary to administer your estate or trust to ensure efficient management and avoid potential conflicts among beneficiaries.

  • Review the titling of your assets to ensure they are properly structured to pass outside of probate, such as assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship.

  • Identify and minimize assets that are subject to probate by transferring them into non-probate arrangements or structures, such as trusts, joint ownership, or beneficiary designations.

  • Regularly review and update your estate plan to ensure it reflects your current wishes, circumstances, and changes in applicable laws.

  • Make necessary adjustments to maximize probate avoidance strategies as your estate evolves.

  • Seek advice from estate planning attorneys, financial advisors, and tax professionals to develop and implement effective probate avoidance strategies tailored to your specific needs and goals.

  • Educate your beneficiaries about probate avoidance strategies and the potential benefits of minimizing probate costs, delays, and public disclosures.

  • Ensure they understand how to access and manage their inheritance outside of probate.

  • Document your probate avoidance strategies and communicate them clearly to your executor, trustees, and beneficiaries.

  • Provide instructions and guidance to facilitate the efficient administration of your estate and trust assets.

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