The COVID-19 Pandemic is a wake-up call for everyone to implement an estate plan, if you do not already have one, or to review your existing estate plan. As a result of the global health crisis, it is critical for you to be prepared in order to protect yourself and your family. The use of probate avoidance strategies is an integral part of your comprehensive estate plan. One of the most important benefits of avoiding probate is that your assets will automatically pass upon your death to your beneficiaries without the delay and costs involved with a probate proceeding in the Surrogate’s Court. This is a crucial advantage especially during the COVID-19 Pandemic because it allows a decedent’s beneficiaries to gain immediate access to assets for the payment of the decedent’s funeral and other expenses.
What is Probate?
Probate is the legal process of submitting the Last Will and Testament of someone who has died to the Surrogate’s Court for approval. The Last Will and Testament will only govern “Probate Assets” which are assets that were solely owned in the decedent’s name at the time of death. Assets that the decedent owned at death that have a right of survivorship, beneficiary designation, or are held in trust, will pass by operation of law outside of the Last Will and Testament. These assets are known as “Non-Probate Assets”.
How to Avoid Probate
If your goal is to avoid probate, we can advise you regarding which strategies make the most sense for your estate plan. The following are commonly used strategies to avoid probate:
- Revocable Living Trust– a legal document which you establish as the Settlor and fund with assets to which legal title is held by the Trustee for the beneficiary and will pass upon the Settlor’s death;
- Joint Tenants with Rights of Survivorship and Tenancy by the Entirety (for spouses only)– types of ownership for real property which will transfer upon the death of an owner or spouse to the surviving property owner or spouse;
- Beneficiary Designations– naming the beneficiary for your retirement assets (IRA and 401(k)), life insurance, and annuities which will pass on the account owner’s death; and
- Payable on Death (POD), Transfer on Death (TOD), Joint Tenants With Rights of Survivorship (JTWROS), and In Trust For (ITF)– assets (bank and brokerage accounts, stocks, and savings bonds) having these designations will pass to the named beneficiary or joint owner upon the account owner’s death.
If your goal is to avoid probate, you must make sure that you title all your assets properly to make each asset a “Non-Probate Asset” that will pass by operation of law upon your death. If you establish a Revocable Living Trust, you must make sure to fund your trust with the appropriate assets in order to avoid probate.
When to Seek Advice and Counsel of Experienced Attorneys
If you wish to avoid probate, you should seek the advice and counsel of an experienced attorney. We strongly recommend that you plan in advance and review the titles and beneficiary designations for all your assets. It is never too soon to be prepared. At Russo Law Group, P.C., we understand that observing social distancing can make the estate planning process more difficult. We can assist you through telephone and video conferences.
It is important when implementing estate planning to consult with and retain experienced attorneys. Russo Law Group, P.C., has knowledgeable attorneys who can provide professional services and advise you. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may assist you.