The most common asset to force families into probate—the court procedure for distributing your assets when you die—is real estate. When a person owns real estate solely in their name when they die, their beneficiaries must go through a probate proceeding to transfer that property into their name when you pass away.
In the vast majority of cases, if a person owns real estate, even if it’s mortgaged, we recommend that they set up a trust to own the property. With a trust, your beneficiaries do not have to go through the time and expense of probate. Whoever you designated as the trustee of your trust will have immediate authority to deed that property to whomever you specified to receive it after you pass away.
Having a trust is important if you own any real estate in the state you reside, but it’s even more important if you also own out-of-state property. Often, people don’t think about estate planning for land or mineral rights that they inherited in another state that they never see, or timeshares in another state, or vacation property they own in another state. Even if the property has little value your beneficiaries could still inherit a huge burden to get that property out of your name. Sadly, sometimes the fees and expenses to transfer the asset outweigh the value of the property, and the beneficiaries decide to forfeit their interest.
Out-of-state property is such a hassle because you must open a probate proceeding for every state where property is located. For example, if you live in Arkansas, own some mineral rights in Texas, and have a timeshare in Branson, Missouri, your heirs will have to open a probate in Arkansas, because that’s where you resided when you died, and then open separate ancillary probates in Texas and Missouri. As you can imagine, this process can get very expressive and very overwhelming very quickly.
The best way to avoid this is to set up a trust and transfer ownership of all of your real estate into the name of the trust.
