Wills have functioned quite well for the past several thousand years passing property from one person to another at death. Probate and wills are part of an ancient tradition beginning (we think) with the Ancient Greeks to the Romans in the form of predominantly verbal wills. The Romans would have a Roman Citizen create a verbal record of their wishes in front of seven witnesses. I can imagine this was highly problematic both with a witness misremembering or with the possibility of an interested party purposely misinterpreting the wishes of the Testator. Fast forward through English law, written wills to the system we have today, there can still be problems with the probate system.
Problems can arise from technical issues with the working of a will or challenge by a 3rd party to the will. Probate can take anywhere from six months to years to complete. So, how does one avoid the necessity of probate altogether?
- Trusts: are private documents, while a will is a public document. Trust are administered outside of court supervision.
- Beneficiary Assets: Financial Assets such as life insurance, annuities, 401k’s, and IRAs can name specific individuals to take property.
- Deed planning for Real Estate: Deeds can be written to pass real estate outside of the probate process and also may also serve as asset protection. Some examples are Lady Bird Deed, Life Estate Deed, Joint Tenants with Rights of Survivorship Deed, etc.
- Joint Owner with Rights of Survivorship: While deeds can be drafted to pass Real Estate outside of probate to a joint owner, bank accounts can also be owned by multiple people as joint owners with rights of survivorship (JTWROS). Even automobiles can now be owned in North Carolinas by multiple people as JTWROS.
- P.O.D./T.O.D.: Banks will now allow an account holder to add beneficiaries to savings, checking, and money market accounts. This is often called adding a payable on death (P.O.D.) or transferrable on death (T.O.D.) beneficiary to an account.
Many of the items discussed above can allow you to easily avoid probate with assets. For the impact of these methods one may want to consult an estate planning and elder law attorney.
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street
Shelby, NC 28150