Many people wish to avoid probate upon their deaths. Whether your estate must be probated is determined by the titling (or ownership) and designation of your assets upon your death. Assets which avoid probate are those which are held as joint tenants with a surviving individual, or which have established beneficiary designations or pay on death/transfer on death (POD/TOD) designations as of the owner’s death. Other assets which avoid probate are those titled to a revocable or irrevocable trust. These types of assets transfer automatically upon the owner’s death and do not generate a probate proceeding provided that the designated recipient is living at the time of the transfer.

In the past, real estate has presented a particular problem, as there was no way to put a beneficiary designation on the property. Thus, to avoid probate, the property either needed to be transferred into a trust or to a joint owner during the property owner’s life. However, Minnesota has now created a transfer on death deed (or TODD) which allows the property owner to designate an individual or individuals to receive the property upon his or her death while avoiding a need to probate the property.

Thus, in order to ensure that your estate avoids probate, you must review the titling and designation of all of your assets to ensure that your estate does not include any assets which will generate a probate. An estate planning attorney can assist you with your asset review and with any necessary action with regard to your assets. It is also prudent to continue to review the titling and designation of your assets on an annual basis to so that your estate continues to include only non-probate assets.

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