Is there anyway to avoid probate and not have to create a trust?

There are a multitude of ways to avoid probate without creating a trust.  For example, there is joint tenancy (where the surviving owner(s) takes the interest of the decedent); payable on death accounts (commonly used in the banking world) and beneficiary designation forms (used with life insurance and retirement accounts).  These types of assets pass other than through the probate process upon an individual's death.


Manipulating the ownership of assets into one of these categories is not always easy. For instance, if you own a residence (other than using joint tenancy or a beneficiry deed) it is difficult to avoid probate without using a trust instrument. If there are multiple heirs, having multiple names on the residence might work, if everyone dies in the expected order. This does not always happen and if it does, and changes are not timely made, or cannot be made, perhaps due to incapacity, then the distribution plans for the residence may be skewed.


Additionally, a major problem with distribution plans of probate avoidance techniques is the difficulty in providing for contingent (alternative) takers should the intended heir die and the distribuion plan or holding is not modified. Take the situation where a parent wishes to leave his house to his three children and places the names of the three children on the house, holding title in joint tenancy. Suppose, the parent wishes for the children of his children to take should one of the parent's children dies prior to the parent.  Using a joint tenancy deed in this case would result in only the surviving two children taking the house when the parent dies. The deceased child's children do not take any of the interest in the residence, which may be contrary to the parent's wishes.


A further complication in placing children's names on the residence involves creditors.  Any creditor with a claim against a child can likely "go after" the child's interest in the residence during the life of the parent. This could be a disastrous result.


When using beneficiary designations or payable on death accounts it is difficult to provide for contingent beneficiaries should one or more beneficiaries die before the account holder.  It should be noted this does happen (more often than you might imagine) and again can create unintended consequences.


Bottom line: Be careful relying on only the use of non-probate transfer means to pass assets just to avoid probate. Consider a trust if this is a concern of yours.

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