Avoiding Probate Without A Trust

Let’s assume that your estate is under $5.43 million dollars ($10.86 for married couples), that your beneficiaries are not minors and are mature enough to receive their inheritance in one lump sum. If so, the primary reason for having a trust would be to avoid probate. While a trust can certainly accomplish that goal and, if you are willing to spend the extra money to create one, a trust is the best way to avoid probate. However, if you do not want to spend the extra money or you do not like the idea of having to fund a trust, then you can still achieve your goal of avoiding probate without a trust for most of your assets by utilizing the following techniques:

1. Hold Your Assets Jointly With Someone You Trust. Assets that you own jointly with another person will pass automatically upon your death to the surviving joint owner. Titling assets this way is common for married couples and makes for a very easy process of transferring assets upon death (assuming, obviously, that you want the joint owner to inherit that asset). The downside to joint assets and the reason lawyers are sometimes loath to recommend this solely for the purpose of avoiding probate is that any asset held jointly gives both owners control over that asset. Accordingly, the joint owner could withdraw all of the money in your joint account. Additionally, that asset also becomes subject to the creditors of the other joint owner. Trusting the person you name as a joint owner on an account is critically important.

2. Include Transfer on Death (“TOD”), Payable on Death (“POD”) or Totten Trust Beneficiaries On Bank Accounts. New Hampshire law allows you to list people to specifically inherit a certain bank account (checking or savings). If you take advantage of this law (most banks have a form for you to fill out) that account will pass automatically upon your death to those named beneficiaries. One thing to be careful about is if you own an account jointly with another person and list TOD/POD/Totten Trust beneficiaries. New Hampshire law states that the asset first passes to the surviving joint owner and then, assuming the survivor doesn’t change the beneficiaries, to the named beneficiaries. All assets that pass pursuant to these designations flow outside of probate and seamlessly to your beneficiaries. Additionally, the beneficiaries have no control over the asset during your lifetime.

3. Name Beneficiaries on Retirement Accounts and Brokerage Accounts. A significant amount of wealth in the America is held in retirement accounts and brokerage accounts. You can pass these accounts on to your loved ones by listing them as designated beneficiaries (very similar to the TOD/POD/Totten Trusts above).
If you do not have a trust, utilizing the above will ensure that a significant amount of your assets will pass automatically upon your death without being bogged down in Probate.