July 12, 2016
Avoiding Michigan Probate without a Trust: PODs and TODs
For a variety of reasons, people sometimes want some or all of their assets to pass directly to specific individuals upon their deaths, outside of Michigan probate. One way to accomplish this is to set up a “payable on death” (POD) account for money in a bank account or a “transfer on death” (TOD) account if funds are in a brokerage account.
Michigan probate is the process through which a court determines how to distribute property after an individual dies. Some assets are distributed to heirs by the court (probate assets) and some assets bypass the court process and go directly to beneficiaries (non-probate assets). With POD and TOD accounts, the account owner names a beneficiary (or beneficiaries) to whom the account assets are to pass when the owner dies. Generally all that is required to get the money or control of the account is for a beneficiary to show the bank manager or the brokerage firm an original death certificate. The funds pass outside of probate, meaning that the beneficiaries can receive the money quickly without the involvement of the probate court. The account assets also receive a “step-up” in basis when the original owner passes away, meaning that no capital gains tax should be due if investments are liquidated in order to be transferred.
Only the account owner has access to the assets while alive; the named beneficiaries have no control over the account, and the owner can change beneficiaries at any time, if competent to do so. If the named beneficiary predeceases the account owner, then the assets are distributed to the remaining beneficiaries or to successor beneficiaries, depending on what the owner writes on the beneficiary designation form or online. If there is only one beneficiary and he or she predeceases the owner, and the owner makes not subsequent changes to the beneficiary designation, the assets go into the account owner’s probate estate.
Problems with Beneficiary Designations
But receiving assets could be a problem for certain beneficiaries, such as a child with special needs who depends on Medicaid and other public benefits. If the account amount is large enough, it could be advisable to do special needs planning to avoid the assets interfering with the receipt of public benefits.
Also, some attorneys discourage passing assets through accounts like these for the simple reason that people sometimes forget about the accounts, and their existence can confuse an individual’s estate plan. For example, the will may say that everything should be distributed equally to the account owner’s three children, but the POD or TOD account passes assets to only one child, creating unequal shares among the children. If avoiding probate is the goal, it may be better to put all assets into one revocable trust that clearly states who should get what. But these potential problems are much less of an issue if the estate is a simple one – for example, one surviving parent with only one child..
One type of asset always creates an issue–that is the house. In Michigan to avoid probate with real estate we typically use a Lady Bird Deed. It’s a special type of deed that avoids Michigan probate at death and can pass directly to your beneficiaries.
Learn More About Avoiding Probate in Michigan and Benefciary Designations
You can learn more about avoiding probate and beneficairy designations in Michigan, by attending one of our estate planning workshops that are held in Brighton, Livonia, Novi and Bloomfield Hills on an almost weekly occasion. These workshops serve everyone in Livingston, Oakland and Wayne County who are looking for an estate planning or elder law attorney to guide them through the second half of life and help their family avoid probate.