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Trusts, Transfer-on-Death Deeds and Avoiding Probate

Over the last several years, authors have expended much ink discussing the topic of probate and, specifically, avoiding probate. Today, with the continued evolution of the law, you have more choices than ever if you want to create an estate plan designed to avoid probate.

Using the probate process can be helpful in some circumstances. For example, opening a probate estate creates a specific deadline date by which time all creditors must request payment or forfeit their claims. If these types of creditor issues are not a significant factor for you, then you may decide that probate’s advantages are too few, given the drawbacks. Even a relatively simple and straightforward probate administration can take many months and cost thousands of dollars. Additionally, probate cases are public records, and anyone may view them.

For those seeking to avoid probate, many vehicles exist to accomplish this end. A revocable living trust offers many potential benefits to address a variety of issues. The process of “settling” a living trust (which means distributing the trust’s assets upon the occasion of the creator’s death,) does not require court intervention and is not a public record. This means, that, if many cases, distributing your assets using a trust may often be more private, less expensive and less time consuming than using the probate process.

In addition to trusts, other tools exist to pass assets outside probate. The law allows you to place “pay-on-death” or “transfer-on-death” designations on many assets, like bank accounts, stocks and bonds. These designations work like a life insurance beneficiary designation. The beneficiary only needs proof that he/she is the beneficiary, and that the owner is deceased, in order to take ownership of that asset.

Additionally, since 2005, Wisconsin law permits owners to place a transfer-on-death designation on real property. To accomplish this, the owner records a “transfer-on-death deed” with the appropriate county’s register of deeds. These deeds are fully revocable during your lifetime. You may either record a new deed or simply revoke the transfer-on-death designation. The law does not require you to notify the beneficiary before revoking the designation. Transfer-on-death deeds may be useful for consumers who have homes, or other real properties, of significant value, but little else in their estates. Laws vary from state to state. You will want to speak to an attorney who understands your state’s laws.

It is important to keep in mind, though, that tools like pay-on-death and transfer-on-death designations assist only with helping one asset avoid probate on your death. A revocable trust can cover all your assets and may provide benefits to you in terms of avoiding so-called “living probate” matters (such as a guardianship proceeding.) A trust can also better protect those who receive your assets from divorce, lawsuits and bankruptcy.

As times continue to change, so does the law, and with it, the options available to you for planning your estate. To find out if avoiding probate is a technique that might benefit you, we invite you to request a consultation with one of our experienced attorneys.

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