can I avoid probate by making arrangements prior to death,

UPDATED: Jul 6, 2009

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can I avoid probate by making arrangements prior to death,

I am 70, wife is 65, 2 sons 40; we own two condos, one for us and one for my single son, two old cars worth $2500 each. thank

Asked on July 6, 2009 under Estate Planning, Tennessee


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

Answered 13 years ago | Contributor

Different states, however, offer different ways to avoid probate. Here are your options in Tennessee.

In Tennessee, you can make a living trust to avoid probate for virtually any asset you own -- real estate, bank accounts, vehicles, and so on.  You need to create a trust document (it’s similar to a will), naming someone to take over as trustee after your death (called a successor trustee).  Then you must transfer ownership of your property to yourself as the trustee of the trust.  Once all that’s done, the property will be controlled by the terms of the trust.  At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.

In Tennessee, if you own property jointly with someone else, and this ownership includes the “right of survivorship,” then the surviving owner automatically owns the property when the other owner dies.  No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.

These forms of joint ownership are available under state law:

Joint tenancy.  Property owned in joint tenancy automatically passes to the surviving owners when one owner dies.  No probate is necessary.  Joint tenancy works well in acquiring real estate, vehicles, bank accounts or other valuable property together.  Each owner, called a joint tenant, must own an equal share; or 

Tenancy by the entirety.  This form of joint ownership is like joint tenancy, but is allowed only for married couples.  Basically a transfer to a husband and wife creates a tenancy by the entirety, not joint tenancy.

In Tennessee, you can add a “payable-on-death” (POD) designation to bank accounts such as savings accounts or certificates of deposit.  You still control all the money in the account your POD beneficiary has no rights to the money, and you can spend it all if you want.  At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.

In Tennessee, you can register stocks and bonds in transfer-on-death (TOD) form.  People commonly hold brokerage accounts this way.  If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death.  No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.

L.M., Member, California Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

You can avoid probate by setting up a living trust and putting both condos and the two cars in the trust.  You can make your sons the beneficiaries of the trust.  If, however, you have any other assets--bank accounts, investment accounts, even personal property like furniture, artwork, jewelry, unless you also put these in the trust, they will become part of the general estate and have to go through probate.  Take inventory of everything you have and put it all into the trust to avoid probate completely.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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