How you own your stuff & why it matters
There are a few different ways you can own your stuff. But why does it matter? Probate Avoidance.
Generally, there are three ways to avoid Probate:
So lets talk about how you may own your Stuff.
Trusts- If you have worked with an estate planning attorney, you may have set up and funded a trust. All of your stuff would have been transferred to the trust by changing title of the asset or by having the trust as a beneficiary (when appropriate). As you no longer hold title of your stuff in your name alone and a successor trustee (the person who manages the trust) takes over when you pass, probate avoided. You do not need the probate court to transfer your stuff, the trustee has the authority to do it.
Beneficiary Designations- Beneficiary designations allow you to designate who an asset goes to on your passing. The asset transfers under the terms of the "governing instrument." A "governing instrument" can be a number of different documents: a annuity policy, bank account, retirement account, insurance policy, deed, trust, and more. A beneficiary designation can have more than 1 person or entity as the beneficiary. The beneficiary may also be listed as a primary beneficiary or contingent beneficiary. The primary beneficiary would receive the asset on your passing. The contingent beneficiary only receives the asset if at your passing the primary beneficiary is deceased or no longer in existence. Beneficiary designations are a great tool as they avoid probate and you do not have to add a joint owner. You still own the asset, now there is an agreement about what is to be done with it at your passing.
Joint Ownership- In Michigan you can jointly own property in four ways:
Tenants in common- (Real/Land property)This is created when property is given to two or more people who are not married to each other and the deed or document does not contain language regarding a joint tenancy or rights of survivorship. All owners have an equal right to use or occupy the entire property so long as the tenancy stays intact. Once a owner dies or sells their share the remaining owners are only entitled to their share. Each owner's share passes to their estate when they pass away.
Joint tenants- (Real/land property and personal property)- This is created when property is given or conveyed to two or more people and the document specifically mentions joint tenants. It may different for some assets like a vehicle or bank account because when two or more owners are listed on those assets, they automatically own the property jointly.
Joint tenant with full rights of survivorship- (Real/land property) This is created when real property in given or conveyed to two or more people and the document (usually deed) specifically mentions survivorship. The special survivorship language provides that when a joint owner dies their share passes to the other joint owners, and no owner can sell or transfer their interest in the property without the consent of the other owners.
tenants by the entireties- (Real/Land property and personal property). This is created when property is given or conveyed to a married couple at the same time. The document does not need to mention any special entirety language. This type of ownership is often seen in real/land property but can involve personal property. The benefits of this type of ownership is that on the passing of one spouse the property automatically is transfer to the other, neither can sell or transfer their interest without the consent of the other, and creditors of one spouse can not put a lien on the property unless both spouses are liable for the same debt.
As you can see, each type of joint ownership listed above leaves the surviving owner with different rights or may be treated differently for creditor purposes.
In your name alone- When you own property in your name alone, be it personal or real/land property, without an beneficiary, joint owner, or having the property placed in a trust, on your passing probate may be necessary. In the probate process a personal representative (used to be called an executor) will be appointed and they will transfer the property for you.
An experienced estate planning attorney can give you advice on how to title or add beneficiaries to your property to meet your goals and needs and avoid probate all together.
Take care when making property transfers without the advice of an attorney as some transfers may have tax and medicaid consequences.
Information in this blog post is not legal advice but general information. Contact an estate planning attorney to implement a plan for you.