AN EASY WAY TO AVOID PROBATE, IF YOU KNOW WHAT YOU’RE DOING

Although death brings finality to life here on earth, it also starts another chapter sometimes harshly referred to as “post-death” matters.  Post-death matters are all those things that must be handled and dealt with after a person dies to tie up the loose ends and close out their mortal chapter of what they left behind here on earth.

            Some post-death matters must be dealt with immediately after a person dies. These include notification to family and friends of the person’s death, planning the funeral, wake or life celebration, making arrangements for burial, cremation or other disposition of the person’s remains, and maybe writing their obituary.  Very soon after these immediate “post-death” matters are handled and completed, the family usually begins to think about what must be done with the property and assets that the deceased person left behind.  Whether its real estate, stocks and bonds, personal effects such as jewelry or an automobile, or life insurance or an IRA, the deceased person’s property and assets, like their own bodily remains, must be properly disposed of after their death.

            Often people will leave written instructions concerning how they want their property and assets to be disposed of after their death.  These written instructions are most often set forth in a Last Will and Testament. A person may also, however, leave written instructions directing the disposition of his property and assets other than by a Last Will and Testament.  These instructions may be in the form of a written contract designating someone as the beneficiary of their life insurance proceeds, annuity contract or IRA.  Other written instructions may be on file with a bank, financial institution or brokerage firm designating their financial account as a right of survivorship account with another person or possibly as a “payable on death” account so that the account balance will be payable to another person at the account holder’s death.

            In the majority of cases, these post-death instructions left behind by a person other than by their Last Will and Testament can be followed and given effect without outside interference and without involvement of the local probate court.  Generally, the person designated by the deceased person to receive the property by these types of designations can gain access to the property with relative ease.  That is to say, the person designated as the beneficiary of the life insurance policy, annuity contract or IRA merely completes the necessary paperwork and provides the necessary documentation to the insurance or annuity company or financial institution, and he or she can generally receive the insurance proceeds, annuity payments or IRA.

            The same is usually true for jointly titled financial accounts. The surviving joint account owner on the checking or savings account can obtain the funds remaining in the account at the death of the other joint account owner by merely presenting a death certificate and proper identification to the bank or financial institution.  Or, an automobile, mobile home, or camper titled jointly in two (or more) persons names with an “or” designation can be simply retitled into the surviving owner’s name by the surviving joint owner through the local office of the Department of Motor Vehicles (or, in the case of a boat, with the Department of Natural Resources).

            In most cases, no other person or family member need be involved to effectuate the transfer of these assets and property left behind by a person after his or her death.  These types of property and assets that pass to another upon the deceased person’s death other than by the person’s Last Will and Testament are usually referred to as “non-probate” assets and property.  They do not have to be “probated” through the probate court in order for the person who is entitled to them to be able to obtain them, and they are generally not subject to probate administration.   There are some caveats to simply relying upon beneficiary designations and jointly titled property to avoid probate, but if you can plan around them and understand the limitations of these types of death transfers, there is a great opportunity to ease the “post-death” burdens you leave behind for your family to handle after you’re gone.

            The same cannot necessarily always be said, however, when a person leaves written instructions disposing of his property by way of a Last Will and Testament.  In order for a person’s instructions set forth in their Last Will and Testament to be given effect and carried out, the Last Will and Testament must be “probated” by the probate court and the property and assets must go through that often dreaded post-death process known as “probate administration”. Probate administration can be simple or complicated, formal or informal, quick or lengthy, and it is often dependent upon the type or amount of property that a deceased person left behind as well as the people they left behind. 

(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice.  If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds is the former Horry County Probate Judge and is the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC  29575.  The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law.  Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)