To avoid probate I intend to do Pay Upon Death savings accounts for my adult kids and joint tenancy.How do I do it?

I have limited assets.To avoid legal fees,etc. is it feasible to name my adults children as beneficiaries to my lump sum private pensions benefits,term life and list them on the savings accounts Pay Upon Death? And will my house transfer to them if I do a grant deed joint tenancy?

Asked on June 28, 2009 under Estate Planning, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

With respect to your pension benefits and life insurance, you can indeed simply name beneficiaries and upon your death have the proceeds payable to them without having to go through probate.   Contact you insurance company and your pension provider to make arrangements.  It should be noted however, that with respect to your pension, if you're married your spouse may have rights to some or all of the money.

 

As for your savings accounts, "payable-on-death" (POD) bank accounts offer one of the easiest ways to keep money out of probate.  All you need to do is fill out a simple form, provided by the bank, naming the persons you want to inherit the money in the account at your death.  At such time, the beneficiaries just go to the bank, show proof of the death and of their identities, and collect whatever funds are in the account.  Again there might be community property considerations if you are married.

As for your house, if it is owned in joint tenancy it will not have to be probated.  In the deed just make sure to use the words:  "joint tenants", "in joint tenancy", or similar wording.  Then upon your death, the other joint tenants will take over your share by operation of law.  It should be noted, however, that joint tenancy is not recommended for an asset that can increase in value, such as a residence.  The reason for this is because the surviving joint tenantswill not receive a stepped up cost basis to fair market value at the date of death of the other joint tenant.  Cost basis is used to determine capital gains.  If tax consequences are not a concern for you, then a joint tenancy will work.

You may want to consider a living trust.  It generally will avoid probate for all assets that have been transferred to the trust.  Additionally, a trust can also avoid a conservatorship, if needed, at such time as an individual can no longer manage his/her affairs.

Bottom line, I think that you are on the right track here.  Your instincts are good insofar as trying to avoid probate; a process that can be lengthy and expensive.  However, there are several issues  that need to be more fully explored.  I think it would be well worth the time and nominal expense to consult with an estate planning attorney on all of this.

 


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