Probate is the term for the legal process of transferring property ownership from someone who dies to the beneficiaries named in his will. The court supervises the person who administers the estate, who is known as the executor, until he is ready to distribute the estate to the beneficiaries. Since executor fees, as well as the fees of any attorney the executor hires, are paid by the estate, some people plan ahead to avoid probate. The type of will you choose cannot help you in this goal.
Types of Wills
A will is simply a statement you make and sign, according to the laws of your state, to describe your intentions for your property after you die. It can be printed or typed -- and some states accept handwritten wills as well. In a will, you can name your beneficiaries, an executor and a guardian for your minor children. People often choose to use a form will, which you can obtain from the court, your attorney's office or from an online legal document provider; just make certain the form is valid in your state. You can also use a will prepared by your attorney or, in some states, write out your own will by hand. Each state has its own requirements for making wills, so become informed before you begin.
Picking up pen and paper and writing out a will may create a valid legal document, depending on the state you live in. Handwritten or holographic wills are permitted in about half the states, but each state imposes its own restrictions. In some states, like California, a holographic will must be entirely in the handwriting of the person making the will and must be signed and dated by her. No witnesses are required. This is more convenient for the maker of the will, but proving the will after death is more difficult, since no witnesses can testify about its execution.
States laws specify whether a will must pass through probate, and the primary considerations are the value of the estate and the type of property in it. For example, a will that leaves an estate valued at less than $150,000, and comprised of liquid assets like cash or stocks, can avoid probate in California. Generally, to avoid probate, you must limit the value of the property in your estate when you die and keep it liquid.
Reducing Estate Property
One way to avoid probate is to give away all of your property before you die. But that is not the only way to die with fewer assets in your estate. You can eliminate real property from your probate estate by holding title to the property in joint tenancy with the person you wish to inherit it. When you die, full title to the property automatically vests in the other joint tenant. Similarly, many financial institutions allow you to name a beneficiary to whom your account will be transferred automatically when you die, including investment, retirement, insurance and even checking accounts. Living trusts can also be used to avoid probate. These investment vehicles allow you to transfer property to a trust, name yourself as the primary beneficiary, then name successor beneficiaries to take the interest in the property when you die.