Law Office of David L. Howell

Certain assets pass outside of probate - that is they pass to the designated beneficiary by function of law and such assets do not need to be administered through a trust or by will.  Among these assets are:

1.  Tax-deferred retirement accounts.  401k and similar accounts, IRAs, etc., all pass directly to the designated beneficiaries on the account.  Due to serious adverse tax consequences, these assets are not retitled into your trust (moving the asset to your trust is treated as a premature withdrawal by the IRS and leads to ruinous tax penalties).  The best way to handle these assets is to have them pass to a beneficiary or beneficiaries designated directly with the financial company holding the asset.  Such companies have standard forms for beneficiary designations and handle these matters routinely, so setting up new beneficiary designations is pretty simple.  Having said that, you will want to factor into your other estate planning how these assets are being distributed so that you can achieve balance among your beneficiaries.

2.  Life insurance policies.  With the exception of the Irrevocable Life Insurance Trust (ILIT) which is a separate trust entity appropriate for certain high-earner clients, life insurance policies are generally left out of your trust as they pass automatically to the designated beneficiary(ies) on your death.  Again, if you want to change the beneficiary designation on a life insurance policy you will do so by filing the appropriate papers with the financial institution holding the policy.

3.  Certain real estate.  In the correct circumstances, where a real estate asset constitutes essentially the entire estate, it may be appropriate to hold that asset in joint tenancy with right of survivorship.  That way, the property interest automatically passes from one owner to the other on the first one's death.  

Tax Deferred Retirement Accounts and Other Assets that Pass Outside of Probate

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