Most people already have assets that will avoid Probate after their death. The most basic of these are jointly titled assets and beneficiary designated documents like life insurance or retirement. However, there are still other asset that are exposed and could easily be modified to become “Non-Probate” assets. The largest assets that are exposed to probate often include the real property, a business and non-retirement investment accounts.
First, make a Revocable Living Trust instead of putting your desires in a simple Will. Why? A Will has to go to Court to be honored, and Probate is a title transfer mechanism from the decedent to the proper beneficiaries. Making a trust does not have to be complicated to be effective. Also, you don’t have to have millions of dollars to make this worthwhile. For example, an attorney handling a probate for a personal representative may charge their hourly rate or base the fee on the size of the estate. NRS 150.060. Take an estate worth $500,000 – the attorney can charge $13,000 (subject to court approval) to address this in probate. In addition, the personal representative can take thousands of dollars as their fee. By addressing the assets in trust, the probate fees can be eliminated and the assets can go directly to named beneficiaries (after dealing with mandatory expenses, bills, takes and the like) without paying a probate lawyer. Stating what you want in a revocable living trust is simple and often easier for family to deal with after experiencing a loss.
Next, make accounts “Payable on Death” to individuals or your Trust. What happens to an account after those on title die? It might be addressed in a Probate case if the account does not have clarity on this issue. However, this can be simplified by designating a person or your revocable trust to receive the asset. Often, people add family to title directly. This can be problematic too because title conveys ownership and full rights to the assets in the account. There would be no obligation to share this account with others that are considered typical beneficiaries. Also, the person named on title could owe creditors that seize funds from the account. It is much better to make the asset payable on death, often referred to as “POD” to the beneficiary you desire, or, make it payable to the trust so the distribution plan you state in the trust is honored.
By: Melissa L. Exline, Esq.