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If you have never been involved in probating an estate, you may not be very familiar with the process. If you have served as a personal representative of an estate, you may be more familiar with probate than you want to be. This can be time-consuming, stressful, and costly, and most people prefer to avoid probate if they can.
Simply put, probate is the process of settling a deceased person’s (decedent’s) estate in court. If the person had a will, the court oversees the distribution of their assets according to the will. If there was no will, the decedent is said to have “died intestate,” and the estate assets are distributed according to Minnesota probate law. Whether or not there is a will, creditors of the estate must be paid before estate assets can be distributed.
What assets go through probate? Any property the decedent owned in their sole name, from the knick knacks on the coffee table to the house in which the coffee table is located. If you want to avoid Minnesota probate, you need to remove assets from your sole name. Four Ways to Remove Assets From Your Probate Estate
One question we often hear is, “Does a will avoid probate court?” Having a will prevents your estate from being distributed under Minnesota intestacy law, but it does NOT avoid probate. Fortunately, there are other simple measures that do.
One of the most popular ways to avoid probate is by having a revocable living trust as part of your estate plan. A trust allows you to transfer assets out of your name into the trust. The word “revocable” means that you can revoke the trust at any time before you die or become legally incapacitated. You can use and enjoy assets in the trust just as you could when they were in your own name. You act as the trustee and manage the assets of the trust during your life.
After your death, a successor trustee that you have named takes over management of the trust and distributes assets in the trust as you directed in the trust document. Assets in the trust completely bypass probate, as they are in the name of the trust, rather than your name.
There are other types of trusts as well, both revocable and irrevocable, designed for various purposes like minimizing taxes or providing for a loved one with special needs. All of them bypass probate because the assets they contain are titled in the name of the trust.
Because a trust can contain all types of assets and is easy to update should your beneficiaries change, it is a popular option for avoiding probate.
You don’t need to have a trust to avoid probate. Assets in your sole name go through probate. Jointly owned assets do not. That means assets like joint bank accounts and joint ownership of a home “with right of survivorship” do not go through probate. Instead, on the death of one joint owner, ownership of the asset passes directly to the other joint owner or owners.
Before you rush to make all your bank accounts joint with your intended beneficiaries, remember that joint ownership has risks. The joint owner of a bank account has equal rights to all funds in the account and can drain the account, for example. And judgment creditors of a joint owner can reach assets a debtor owns, even those they own jointly with someone else.
For bank accounts and investment accounts, “payable on death” accounts are an option for avoiding probate. Institutions with which you bank or invest usually have forms available to make an account payable on death.
As the name suggests, accounts designated “payable on death” pass to the designated payee on the death of the owner. Unlike assets that are held jointly, the designated payee on a POD account has no claim to the asset until the owner’s death; therefore, neither they nor their creditors can reach the funds in the account.
Unfortunately, with POD accounts, you are generally unable to name an alternate beneficiary. Therefore, if your intended beneficiary dies before you, the contents of the account could end up back in your probate estate unless you remember to designate a new beneficiary.
Transfer on death designations work in a way similar to POD designations for accounts, except that they transfer a different type of asset. You can transfer real estate with a transfer on death deed. Upon your death, the transferee can have the county recorder transfer the property into their name by presenting a certified copy of your death certificate along with an Affidavit of Identity and Survivorship. You can also use a transfer on death deed to transfer real estate into a trust upon your death.
The disadvantage of a transfer on death deed is that all of the beneficiaries must agree on what to do with the home and all must sign any transfer of title. For example, if a transfer on death deed leaves a house to three children and all of the children are married, all of the children and their spouses must agree on the disposition of the home. To avoid such complications, a transfer on death deeds work best when they name only one or two people.
Some states permit transfer on death designations for motor vehicles, but Minnesota is not among them. However, you can transfer motor vehicles, like other assets, through a trust if you want to avoid probate.
While there are many ways to avoid probate, you may ask yourself whether you want to. The probate process can be cumbersome, but it does have its advantages. Going through probate ensures that legitimate debts of the estate are either settled or barred, so that a creditor cannot come after assets months or years after the decedent’s death. The court oversight of the probate process may also be welcome if there is likely to be a dispute among heirs or concerns that administration of the estate needs supervision.
You should discuss all of your estate planning needs, including the desire to avoid probate, with an experienced Minnesota estate planning attorney. Remember to update your estate plan every time you undergo a major life change, such as the birth of a child or a divorce. Minnesota law revokes gifts to a former spouse made in a will or trust executed before a divorce, but not joint ownership, payable on death, or transfer on death designations. If you are not mindful, you could accidentally leave assets to a former spouse!
If you have further questions about how to avoid probate in Minnesota, we invite you to contact Mundahl Law to schedule a consultation.