What has been missing for so long is a means of transferring real estate in a simple, probate-free process. In about half the states, that hole has been plugged.
Unfortunately, probate is unavoidable if you own real estate and have not done any estate planning.
If you have done estate planning, however, then there are three common ways to transfer real estate without probate.
- Joint Tenancy - This is one of the most common ways that people seek to avoid probate. When someone is made a joint tenant of any real estate, that person automatically takes possession of the property after any other owners pass away. Most attorneys counsel against this, however, as the property can often be attached by any joint tenant's creditors.
- Trusts - Trusts do not go through probate, making them an excellent way to transfer real estate. However, many people do not need a trust for anything else so the expense of getting one is not always worth it.
- Transfer on Death Deed - As AZcentral points out in a recent article, titled "Probate-free real-estate deeds spread across U.S.," transfer on death deeds are another way to avoid having real estate pass through probate. However, they must be properly recorded during life to be effective upon death. Note: these deeds are only available in about half the states.
If you own real estate and would like to avoid probate upon postmortem transfer, then contact an experienced estate planning attorney to discuss these options and determine which is best for you.
Reference: AZcentral (April 13, 2015) "Probate-free real-estate deeds spread across U.S."