There are several strategies available that DFW estate planning lawyers use to help seniors and their families keep certain assets out of probate, including adding other people as joint owners on their accounts or making beneficiary designations on accounts and policies. However, these strategies should only be done under the supervision of an experienced estate planning lawyer since there can be many unforeseen risks of such actions.
What is Joint Ownership?
In regards to probate, there are two types of ownership: sole and joint ownership and a hybrid – sole ownership with right of survivorship. Property held solely in the decedent’s name must go through the probate process since it can’t legally be claimed by someone else without a court order. Jointly-held property may or may not be subject to the probate process, depending on if a right of survivorship has been vested in another. For example, one half of a bank account that is jointly held by a couple would be subject to probate, while the remaining one half would be the separate property of the surviving spouse. If the bank account vested the surviving spouse with a right of survivorship; however, the entire account would vest in the surviving spouse and not be subject to the probate process. It is worth noting that the entire joint account could be spent by either party during their lives and could be subject to either spouse’s creditors, so you should talk to an experienced probate and estate planning attorney before making these decisions.
How Do Beneficiary Designations Work?
Beneficiary designations on financial accounts and insurance policies are a good way to make sure that those accounts pass to heirs without going through the probate process. However, it’s not always a fool-proof strategy. For example, if a senior makes a minor the designated beneficiary to a financial account and then passes away, the minor cannot receive the assets free and clear. Instead, an adult guardian must be appointed to manage all distributions. If a guardian is not named by the senior before passing, the probate court will appoint someone who, in some cases, may not be the person that senior would want handling the minor’s finances. Again, if the beneficiary passes away before the senior, a new beneficiary will have to be named for the account or policy to avoid probate. This is not always possible depending on the medical state of the senior, so there is a good chance the assets must be administered through probate proceedings.
If you want more information about probate, or you want to have your current estate plan examined to make sure you can avoid probate, please contact our DFW estate planning lawyers at (817) 752-3307 to set up a consultation.