How To Avoid Probate After Death

With good planning, you can avoid probate after death. Probate is expensive and time consuming. Use an estate planning attorney now.

By Ilyce Glink and Samuel J. Tamkin

Q: I just have a question about adding a name to the deed of a house. My boyfriend (we have never married) and have one son together. Our son has my last name and is now an adult. My boyfriend is the one who bought the home we live in and the home is in his name.

He is now thinking about the future in case something should happen to him. He is trying to have our son avoid probate after death, just in case, but isn’t sure what to do and how to do it. There is no mortgage on the house.

We now are in our 60’s and want to do something. What do you suggest?

Taking care of your affairs early in life

A: We’re glad you’re asking these questions now, when you’re both still reasonably healthy. Most folks don’t do much to take care of their estates when they are young, perhaps because they can’t imagine ever getting old or sick. But at some point, most of us realize we’re not going to live forever, and that’s when we decide to review what we have, what we owe, and who we’d like to leave things to after we’re no longer walking the earth. It’s too late then to avoid probate after death. You need to plan ahead to know how to avoid probate court after death.

While we appreciate that your boyfriend wants the house to go to your son, what will happen to you if he precedes you in death? Shouldn’t the house pass to you first, so you have somewhere to live? When you think about and plan an estate, you have to think about all of the possibilities that may come to pass and affect outcomes. For example, if your boyfriend and son get into a fatal car accident, we imagine your boyfriend would want you to end up with the house.

Pitfalls of living with a partner without a will or estate plan

You and he should sit down and plan out the “what ifs” list of all the things that can go wrong and what you and he want the result to be. In some situations, your boyfriend could become incapacitated but still alive. In this situation, he may not be living in the house but the house is still in his name and neither you nor your son would have the ability to take out a mortgage or sell it.

Typically, in this column, we talk about hiring a real estate attorney. But, you need someone who can help you both think through your estates. Because you’re unmarried partners, some of the discussion will center around whether some of your assets would be considered community property, even if you aren’t legally married. This status affects not just any assets you have, but also whether each of you can make legal or financial decisions for the other in case of incapacitation.

What happens if you are incapacitated or die

Especially because you are not married, if and when your boyfriend becomes incompacitated or dies, you won’t have access to his bank accounts and other accounts that are in his name. You may not even be able to get access to his hospital room, talk with his doctors or make decisions about his health care. If he dies without naming you as the executor or his will, you won’t have the power to dispose of his assets. And, in some situations, his assets might not go to your son, some of his assets might go to his siblings, if he has any, parents or other heirs.

You and your boyfriend have some important decisions to make, and not just about your assets. So, don’t delay. Talk to each other, and then spend time with an estate attorney to decide how the two of you want to hold your assets, what happens to those assets upon death or disability, and whether you want to avoid probate court upon death.