Probate Avoidance - Methods and Problems

Probate Avoidance - Methods and Problems (1)

Thursday, 03 December 2015 04:05

Probate Avoidance - Methods and Problems

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Are There Various Alternative Methods to Achieve Probate Avoidance Goals Besides a Revocable Living Trust?

Most of us have heard about the need to avoid probate.  How is this done?  There are various methods.  For example, life insurance passes to the named beneficiary and outside of probate.  Likewise most retirement accounts pass in the same manner.  Another item that can pass outside of probate are bank accounts that utilize whatever form of co-account, or Pay-On-Death (POD) beneficiary.  Motor vehicles can also be titled in the name of two persons.  Moreover, your homes deed can be held in a manner that passes outside of probate.  As with most things in life, there may be consequences to holding various property in different manners, so please consult an attorney licensed in your jurisdiction.

The most important item that passes outside of probate is a Trust.  This is important because the use of a Trust helps you and I to achieve your goals most effectively.  A well designed estate plan not only distributes your property in the method you desire, but it also created to provide:

  • Privacy (a Trust is private whereas a Will is public record)
  • A Plan for incapacity
  • Probate avoidance
  • Better tax and gift tax planning
  • The naming of a guardian for your children
  • Protection of the beneficiaries inheritance (from drug or alcohol problems, or future ex’s, or potentially from means tested public benefits such as Medi-Cal.),

So the simple answer is yes, there are various methods to avoid probate, but no single method can achieve all of these goals, and no combination is likely to achieve these goals as efficiently as a Revocable Living trust Centered Estate Plan.


Can’t I Just Put my Child on the Deed to my Home to Avoid Probate?

There are some great reasons why you should avoid putting your child or children on the deed to your home as a method of avoiding probate.

  • Doing so will likely trigger a gift tax
  • Doing so could also trigger Capital Gains Tax
  • Putting your child on the deed makes them a co-owner, and now you must have their consent to do anything with the home including selling or re-financing your own home.
  • It also creates exposure to your child’s creditors, which means if the child get sued, or has tax problems, etc., the home may be used to satisfy the obligation.
  • Inheritance by your child’s heirs is also a possibility which means that if your child dies before you do, you may co-own the home with someone you never considered.

There are some other drawbacks, but suffice it to say that for the reasons given above, there is likely enough weight on the “don’t do it” side of the scale to guide you.

So you see that an average cost of $1,000 to $3,500 for a Revocable Living trust Centered Estate Plan  (plus whatever cost of Trust Administration after the death(s) of the Trustor(s) – the cost will vary depending on complexity) is far more affordable, and a superior method to effectuate your wishes.

See lots of estate planning information on my website at:

Feel free to call me today, and let's start planning!

Dan Powell




Just like my website, nothing in this blog is intended as legal advice. If you need legal advice, contact an attorney licensed to practice in your jurisdiction. I am licensed to practice law in California.  Further, please remember that I speak in generalities in my blog (and on my website). There are so many different factors that can contribute and completely change the outcome that it would not be practical to discuss all of them here. This is why I speak in generalities. Thanks again for reading.



This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information.



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