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  • Writer's picturePorter DeVries

How can I avoid probate with real property?

Avoiding probate with real property can be a desirable goal for many individuals, as the probate process can be time-consuming, expensive, and public. There are several strategies you can consider to bypass probate and ensure a smoother transfer of real property to your chosen beneficiaries. Here are some effective ways to avoid probate with real property:

  1. Living Trust: Creating a living trust is one of the most common and efficient methods to avoid probate. In a living trust, you transfer ownership of your real property to the trust while designating yourself as the trustee during your lifetime. You also name successor trustees who will take over managing the trust and distributing the property upon your death. Since the property is held by the trust, it doesn't need to go through probate, and the successor trustee can execute your wishes without court involvement.

  2. Joint Tenancy with Right of Survivorship: Holding real property as joint tenants with right of survivorship (JTWROS) allows the property to pass directly to the surviving joint tenant(s) upon your death. This means that if you own the property with someone else (e.g., a spouse or family member) as joint tenants, their ownership automatically becomes 100% when you pass away, without the need for probate.

  3. Beneficiary Designations: For certain types of real property, such as real estate held in a transfer-on-death (TOD) deed or a lady bird deed (enhanced life estate deed), you can designate beneficiaries who will automatically become the owners of the property upon your death. This transfer occurs outside of probate and based on the terms you specify.

  4. Community Property with Right of Survivorship: In some states, married couples can hold real property as community property with the right of survivorship (CPWROS). Similar to JTWROS, this ownership structure allows the property to pass directly to the surviving spouse without probate.

  5. Gifting: You can choose to gift your real property to your intended beneficiaries during your lifetime. However, keep in mind that gifting may have potential tax implications and could affect your eligibility for certain government benefits.

  6. Small Estate Affidavit: In some states, if the value of the real property is below a certain threshold, you may be able to use a small estate affidavit to transfer the property to the heirs without going through the formal probate process.

It's essential to consult with an experienced estate planning attorney to determine which option suits your specific needs and goals. Each approach has its advantages and limitations, and the best strategy will depend on your individual circumstances and the laws in your jurisdiction. Properly setting up any of these methods can help ensure a seamless transfer of your real property to your loved ones without the complexities of probate.

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