Probate is not the most recommended way to transfer property on death but it is very common. It often starts when a loved one passes away without a proper estate plan, or when the loved one had only a will and did not name beneficiaries on real estate, insurance policies, and bank accounts.
In these scenarios the estate must go through the probate process, which means that the family has to hire an attorney to file the proper documents with the local probate court in order for the estate to be properly distributed. This takes a minimum of 6 months to two years or more- with the exception that small estates under 100k can be distributed more quickly.
As the process requires an attorney, the costs go higher and higher the longer the case is open. This can occur with a dispute or other unforeseen issues. In the meantime, costs associated with the upkeep of the property add up. Monthly utilities and other bills must be paid and managed by the individual tasked with managing the estate. All of these can contribute to a costly and lengthy probate.
So what is the more efficient process? The more efficient process is to have proper beneficiaries in place. This means making preparations prior to death by for instance executing a beneficiary deed on all real estate properties. Another way to handle this is to place real estate in an LLC or a trust. In the example of using a
beneficiary deed, the property would be transferred to the beneficiary at death avoiding probate and saving money in taxes.
Property passed by a beneficiary deed (and, in general, property transferred at death) gets special treatment for tax purposes called a Step Up Basis.
EXAMPLE: Bob is in his 70's and does not have a proper estate plan, he purchased his residence many years ago for 60k and it is now worth 160k. Bob follows his attorney’s advice and executes a beneficiary deed that leaves the property to his son Tony. At Bob's death the beneficiary deed operates as a matter of law and the home automatically transfers to Tony. This keeps Tony from having to include the home in a court action to probate the estate and allows him to sell or use the residence immediately. Since the home passed through a beneficiary deed, Tony does not owe taxes on the home immediately. Instead, he will pay taxes on the property when he chooses to sell the home. Also, Tony will be imputed the value of the home on the day of Bob’s death. Since the home was worth $160k at
the date of Bob’s death, Tony will only have to pay capital gains taxes on any amount above $160k. Let’s say that Bob turns around and sells the home for $200k. Bob will be responsible for paying capital gains tax on only $40k. By properly planning for his estate, Bob saved Tony money in taxes along with saving money by avoiding probate. Bob also gave Tony the gift of saving time and heartache through probate.
This beneficiary process works pretty much the same for life insurance proceeds, stock portfolios, and bank accounts. In this example, we just covered the beneficiary deed as one vehicle of passing property but there are others. It is very important to make sure you have the beneficiaries properly named for each of these assets and to speak with an attorney on what is best for your situation.
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