by Chris Hinson, Atorrney 
Hinson & Hinson PC

You have a will. That’s great! With a properly drafted will, you have taken a significant step toward providing an orderly distribution of your assets at your death under the direction of your appointed personal representative. However, the will must be presented to the probate court and probated to be effective in transferring assets.

Many individuals look for alternatives to a will that will not be subject to probate (non-probate alternatives).  However, you must be careful incorporating these alternatives in your plan to avoid unintended results. They could conflict with your intentions.

Non-probate alternatives include:

1. Joint Tenancy with Rights of Survivorship (“JTWROS”): if you own property such as real estate, bank accounts, and investment accounts, with another person as JTWROS, the joint owner will receive ownership of that property, regardless what your will
   • There are income tax consequences of joint ownership and gift and estate tax consequences of adding a joint owner to property or Even if there are two or more names as Grantees in a deed, if there is no verbiage of survivorship in the title to the property the property will be held as tenants in common and the decedent’s will must be probated to convey his or her interest in the real estate, and that interest may not pass to the other owner.
2. Beneficiary designation: if you name someone as the beneficiary of a life insurance policy, retirement account, or annuity, that individual will receive the account regardless of what your will
3. If you designate a beneficiary utilizing Pay on Death (“POD”) or Transfer on Death (“TOD”), that beneficiary will receive your bank or investment account regardless of what your will directs.

If your will leaves everything you own equally to your children, one of these non-probate actions can alter your plan if you name only one child as a joint owner on an account or property or you name one child as a POD/TOD beneficiary when you expect your child’s share to be placed in a trust.

And naming a minor grandchild as the beneficiary of your bank account or life insurance will by-pass trust or custodianship provisions found in a will and possibly require an expensive conservatorship proceeding if that grandchild is not age 19 or older.

Although these non-probate actions add simplicity to your plan, make sure they do not de-rail your plan and cause unanticipated results and expenses. Understand they may by-pass carefully crafted trust documents. The action may involve a minor beneficiary. The action may duplicate a devise in the will, unexpectedly enriching a beneficiary. Take the time to coordinate these non-probate processes with your over-all plan, and keep in mind that there are many moving parts in estate planning.

(Submitted by Christine Sampson Hinson. Disclaimer: This blog is informational only and is not intended or constitute legal advice. All information and content in this blog are for general informational purposes only. Readers of this blog should contact their attorney to obtain advice with respect to any particular legal matter. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.)