What does it mean to Avoid Probate?

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What does avoid probate mean?
To understand what avoid probate means, you have to understand what probate is.
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Some basics: Probate, in general, is the court-supervised process of transferring assets in the name of a deceased person to the heirs. In , probate is referred to as "a Succession." But because there are different laws, rules, and regulations that apply to different types of assets you might own, I'd like to use an example.
Let's say that Alan and Alice Peterson own five assets:
(1) A bank account;
(2) An individual retirement account (IRA);
(3) A brokerage account;
(4) A vehicle; and
(5) A home.
One die, Alan dies. Alice goes to the bank where they tell her that she still has access to their bank joint bank account. Alan goes to their brokerage firm where she is told that as the designated beneficiary on Alan's IRA, she can produce a death certificate (when she gets it) and the financial institution will transfer Alan's IRA into an IRA in Alice's name. So far, Alice is on a roll.
But when Alice inquires about their joint brokerage account, the brokerage firm tells Alice that the account is frozen, and that Alice and her family must hire an attorney to get the appropriate court orders in order to gain access to the brokerage account funds.
Then Alice discovers from the Office of Motor Vehicles that she cannot sell or otherwise transact the car until she produces the appropriate court order ordering the Office of Motor Vehicles to take Alan's name off the vehicle title.
Then, when Alice starts to inquire about selling the home, she discovers that she can't sell the home until she "completes Alan's Succession," which will clear up the title to the home.
So, even if Alan had a last will and testament, it's the fact that he had assets titled in his name when he died that required his survivors to hire lawyers to complete this court-supervised procedure, even though Alan's IRA "avoided probate."
So Alice and the kids hire a lawyer, spend a few grand or more, take several months or more, to complete the court proceeding and all that goes along with settling Alan's estate.
Years later, Alice dies, also owning five assets. Even though Alice may have had a last will and testament naming an executor, and naming her children as her sole heirs. The kids must now "lawyer up" and go through the court proceeding in order to get Alice's bank funds and brokerage account, and to sell Alice's vehicle and home.
Some people want their survivors to "avoid probate," which means they want to arrange their affairs in a manner so that their survivors will have immediate access to assets, without their survivors having to have assets frozen while survivors hire lawyers and wait on the judicial system to oversee the settling of the estate.
So perhaps Alan and Alice would have, in order to avoid probate, established the "Alan and Alice Peterson Revocable Living Trust." They would have transferred their "probate assets" to their trust, such as their home and brokerage account, while they would have kept the IRA out of the trust since IRA law permits IRA owners to designate beneficiaries of their IRA accounts.
Then when Alan died, Alice, as the trustee of their trust, could sell the home and access the trust brokerage account, without having to go through probate. Things in a trust do not have to "go through probate" when you die. Only certain assets titled in your name require a probate (or in , "a Succession") when you die.
After both Alan AND Alice die, then the Successor Trustee so designated by Alan and Alice in the trust instrument, would have immediate access to sell trust assets (like the home, if appropriate), and disburse trust assets to the principal beneficiaries of the trust, without having the traditional attorney and court involvement that is required when you die with assets in your name and a Succession is required.
This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.
Paul Rabalais
Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: [phone]

[@paulc2548]

I really appreciate you sharing your knowledge with all of us out here. Your videos helped me understand what is a will, what is a trust, and so on and so forth. Just want to say "Thank you"!.

[@myriamc2c]

Thank you for educating us for free.

[@americasestateplanninglawy1946]

Thanks MC 😎

[@stevenkalavity9879]

There are problems with Trusts too with regard to Trustee actions/behaviors.

[@dattkidd6899]

Then become the trustee and learn the roles of the trustee… you can revoke their title and replace them if they aren’t doing it for the best interest of the beneficiary or your trust

[@kareng2012]

This is excellent. Thank you so much for the information.

[@eideid5668]

Thank you, for your persistent clear explanations on how to avoid the probate court

[@waynephillips-wprealestate]

Thank you. Great video. So it seems like everyone should put their assets in the name of a Revocable Living Trust when they have certain assets like stocks, vehicles and real estate and make sure it is always fully-funded and/or updated as needed prior to death to avoid the probate process, costs, and loss of privacy, right? Is it still necessary to do both the Will and create the Trust? And what would be the downside, tax or otherwise, to have all their assets titled in the Trust name? Thanks in advance for your information.

[@sascotttx5145]

In the State of Texas, all vehicle titles have a Rights of Survivorship agreement at the bottom that can be filled out to avoid probate for the vehicle. No lawyer or court personnel required. Or you can just leave it blank. Most people don't even know it's there.

[@grandmajane2593]

Interesting. I don't live in Texas but it's a good thing to check out.

[@cyannpierce4116]

Thank you for thoroughly defining Probate. I am dealing with a CA Resident, Deceased, Unmarried Brother. No children and No Will. He had Ins. 401k, Post office Retirement & Real Estate. Along w myself there is 5 Living Siblings. A Sister is the Executer. Can the Attorney appointed issue a Cashiers Check from 1 sibling to another sibling that says from the Estate of Gregory Kamali Wong, if his Estate isnt settled?

[@kellydavis8731]

Excellent. In Florida if both names are on the house can't the surviving spouse sell the house without going through probate? Thanks.

[@inspireme33]

I think they need a court order to remove him even though you have a death certificate, it would have to be recorded….I would definitely get a will made…many senior centers in your towns municipality, can offer some of these services.

[@julhe8743]

Thank you great information.

[@adamellenburg7397]

This guy is awesome ✨🙌

[@rosemariealmero1214]

Hi, will there be a trust document or certificate to be shown to the real estate department in order to claim the estate?

[@alz123alz]

THANK YOU, THANK YOU, EXCELLENT,

[@TheMeme191]

What’s the different between living trust and transfer on dead?

[@tisha9221]

I have a problem getting a lawyer to help me in probate court through legal aid because I don’t have any money can you suggesting

[@sandrafowler1272]

Love your video's. I learn a lot from the plain spoken language. I live in south carolina and my mother died suddenly before adding me as a beneficiary on her IRA. She was 84 years old. Do I have to take a lump sum distribution? I'm sole heir of the estate and nothing is owed to anyone.

[@hanatyler654]

Thank you, very informative. Unfortunately as an executrix, I’m going through hell with Probate! Question: my brother was the beneficiary of an IRA, and passed away 11 months after the death of our mother. I am not able to access that now, just was able to get the order from court as an executrix. Also, he was under state care, title 19, how do you deal with that situation? Help

[@jannamwatson]

How did that work out for you? I imagine that the State would take the IRA that he was the beneficiary of to fund his care. He should have had a Special Needs Trust Fund established after she passed with those assets.

[@angelicamichelle1646]

What happens to fathers brokerages

[@robertdean6222]

Great presentation. How do I open up a trust and still have control so my kids don’t underhandedly take my cash ? It can happen ! Would a revocable or irrevocable trust help in anyway ?

[@robertdean6222]

Perhaps I could rephrase this. As long as I am still alive, do I still have full control of the trust as the trustor or does the trustees have equal rights to my estate once in place ?

[@robertdean6222]

Perhaps I could rephrase this. As long as I am still alive, do I still have full control of the trust as the trustor or does the trustees have equal rights to my estate once in place ?

[@dls300]

My main reason to get a Trust done is to avoid frozen assets. My mom's was a mess.

[@americasestateplanninglawy1946]

Great. We learn so much from our prior experiences

[@glammav14344]

Thank you for your videos! what if the vehicle is in both husband and wife’s name as joint owner’s , the wife decides to keep the vehicle an assumes the loan, does it have to still go thru probate?

[@justelectricllc]

Thank you so much!

[@buckmaster7185]

We see touting of Revocable trusts by lawyers but few drawbacks. What is the effect on ad valorem exemptions (often a big tax discount - for personal domicile) by transfer of a residence to a non-human [fictitious entity - cite cases]?

[@amb123.5]

Good info

[@esbiermann62]

is estate in my name same as a revocable living trust set up by my attorney?

[@IMakeIcons]

Great video!!!!!

[@celiamorgan7479]

My mother put someone on all her checking , savings, bonds , but on my dads money left from his life insurance policy was put into a account by the life insurance company and she filled out her daughters as the beneficiaries.. she only has one checking account with 25.00 dollars in it left with no name on it to pay for caregivers. So the one account with just beneficiaries on it does this have to be probated ?

[@celiamorgan7479]

We live in ny state

[@robertcwalkeriii6267]

REAL Estate Probate

[@lequitaward9265]

Thanks for the info!! This was very helpful!! 👍

[@anthonybuchicchio5999]

What state is he in ?

[@Medmann48]

My Dad is 87 Years old & not doing well. Dad has NO property & is in a Nursing home. He does have Mutual Funds/IRA's with an Invest firm & all of that money has beneficiaries attached to it. Do I have to probate his estate eventhough his money is all spoken for? (I am Dad's executor & there is a will)

[@charliezumar5203]

So if my mom & Dad have a will for the three kids.They own 6 things. Now my Mom dies so my Dad has to get a trust so everything is split three ways.My brother is in charge now but my sister & i are only on the will.Not anything else.So my brother pretty much gets everything because we are only on the will.My father is still alive but is 85.So he should get a trust so we don't have to go to probate & the other two kids get there share.If my father gets a trust can the other 2 of use be on the trust along with my brother.Can my father change the will to a trust even thought my brother was put on the bank acount when my mother was still living.My sister & i want to be on the trust with my brother.Please let me know.

[@pamelafunderburk7706]

Like to see you explain more on personal property distribution. Specific to When there are contesting parties, specifically when No Will has been located scenarios In advance Thanks for all your contributions to this terrifying situation. While I have you here , do affidavits from family members help meaning for example deceased person told several people he did not want his daughter to get anything especially before she died . Short of an official Will in place deceased signed a signed document witnessed by to family individuals and a housing authority rep . That allowed the signed witnesses To take possession of his personal property, there is no real estate to distribute. I plan to stand apply to stand in the place of my deceased family member last wishes. Do you think a judge will hear my plea. And better yet honor it . In whole I seek to contest a succession law in that state. Btw the family member domiciled in another state meaning I am not a resident of the state where she died . I heard that most courts will NOT let next I am next of kin down the line to inherit. No one can seem to advise at probate court if I would be denied but out of duty I guess they are sending applications to apply. . I do understand many of the important fiduciary duties by law thus far. Like them or not. Asked around to family nobody wants Do the Probate Dance . I’d sure feel safer if the court did not result demand a court appointed. The deceased was not married.

[@charliezumar5203]

If my mom passes can dad do a living trust instead of the will.My mom put my brother on the bank acount & not the other 2 girls.She is gone my Dad is still here can he get a living trust & add use 2 sisters.

[@DalesValor]

Thought dad's portion of the house would automatically go to mom and she could sell it. I'm in CA. Thank you.

[@et4036]

What you failed to mention is the car or house can be held by mr or mrs, therefore either can sell it 🎰.

[@kellyfontes7757]

From State to State how different is the probate process.

[@lydialara1544]

Thank you my sister in law has no children and is not married. She left a will. And trust. But who is responsible for her house hold items.

[@anthonybuchicchio5999]

Thought if he died all his assets transfer to his spouse.

[@johncash3854]

"What's is it mean!?"

[@grandmajane2593]

Interesting. Still, by getting this Trust from your lawyer, you are still causing an expense. So, maybe its cheaper than the cost of probate. Looks like we just ain't getting out of this world for free!

[@yesmen261]

😄 capitalize on EVERYTHING 🤦🏻‍♀️

[@AberrantArt]

Average cost of setting up a trust is about $500-$1000 USD. It is possible to do on your own, but worth the money to avoid the headache of the paperwork and ensure it's done correctly. But it can be done yourself with some research.

[@charliezumar5203]

My Dad has a car & a truck.Who gets this if there is a trust.We all split it.A home also & a bank account.Who gives my dad a living trust? A living trust atoney.

[@jodimaw7374]

Unless the crazy wife does a survivorship transferring the deed in her name only dropping off his name off

[@RichardE-p4m]

OMG you talk to much... get to the point!

[@jasondillon2567]

too* much.