When mom dies, how can I avoid her estate going into probate?

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Q: I’m the executor of my mother’s estate. The language in her will sounds like her estate will not go into probate. Is that possible?

A: The primary purpose of a will is disposition of property. However not all property owned by a decedent is subject to disposition by a will.

Many of the things our benefactors own are not subject to their will or probate. For instance, most life insurance and annuity contracts name a non-estate beneficiary that is paid directly upon claim (this is called operation of law or contract). The Same holds true for many bank and brokerage accounts these days that have Payable on Death or Transfer on Death provisions.

Joint accounts will usually pass to the other owner sans probate. Assets titled in Revocable Inter-Vivos or Living Trust agreements are administered and disposed of by successor trustees named in the document and real property, too, is often titled so as to pass to an heir while avoiding probate.

In short, anything that does not go to a beneficiary directly will be subject to the deceased will.And all wills, as well as assets that do not pass by operation of law or contract, are subject to probate. All of that other gobbledgook simply says you can do whatever you want once the estate has been administrated.

Ralph S. Robbins, CFP©, is a licensed Certified Financial Planning Practitioner and an Accredited VA Claims Agent specializing in Eldercare Financial Planning. He works everyday helping families in crisis find creative ways to fund long-term care expenses and deal with family financial issues.

Ralph S. Robbins, CFP

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12 Comments

When I get my mother's will probated, does her companion, not married, receive any money from her accounts? He has no deposits to mom's accounts, but she put his name on her accounts about a year ago.
BTW....do NOT assume that all "professionals" are automatically impartial and will protect the elder's assets. There are unscrupulous attorneys & accountants that set up papers so that they can siphon off the person's assets. Sometimes, a close family friend (rather than blood relative) who is known to be trustworthy is a better choice for an executor of an estate. They can be more impartial than a relative at times.

I know of somebody whose house did not close because the attorney, instead of putting the money for the closing costs into escrow, SPENT the money - so it was not there when it was time to close the house. You can't get blood from a stone.
I believe many people hire an attorney upon the death of a family member.....when in fact the "estate" does not have to go into probate. The matter can be handled by family members. People get so rattled by death.....then run to a attorney for help....when in fact they can save their money and handle it themselves.