If you're creating a revocable living trust, you don't need to transfer every one of your accounts to the trust's ownership for the assets to bypass the probate process when you die. Some types of accounts can go directly to beneficiaries without going through probate, even if those accounts are not in the trust.
You don't need to include all your accounts in a revocable trust for your heirs to bypass the probate process, notably retirement accounts with designated beneficiaries and investment accounts that have transfer-on-death provisions.
Revocable Living Trust
As the creator, also known as the grantor, of a revocable living trust, you transfer the ownership of assets to the trust's ownership. You can name yourself as trustee, or manager of the assets, as well as the beneficiary of trust income. You can also name another person or fiduciary as the trustee. While you are alive, you have complete control of the assets in the trust, much as when they were in your ownership.
You can buy, sell, and trade assets, or terminate the trust. You name a trustee and beneficiaries to succeed you after your death. When you die, the trust generally becomes irrevocable, meaning its provisions cannot change.
Treatment of Retirement Accounts
Retirement accounts such as 401(ks) and IRAs have designated beneficiaries, so do not pass through probate. Although you might designate your spouse or children as beneficiaries, you could also name the trust as the beneficiary. This allows you to specify in the trust who get the assets and when they get them. Because the laws on retirement assets depend on the status of the beneficiary, especially a spouse, consult a financial adviser regarding the merits of designating the trust as the beneficiary.
Transfer on Death
If you register a brokerage or mutual fund account with a transfer-on-death provision for a beneficiary, it passes to that person or entity upon your death without going through probate. For banking accounts, such as money market accounts and savings accounts, a similar provision is called "payable on death." You have complete control of these accounts until your death, and your named beneficiaries cannot claim them until that time. When you die, the beneficiary must re-register the account by filling out an application with the securities' transfer agent or banking agent, submitting a certified copy of the death certificate.
Even if you have a revocable living trust, you still need a will. Often called a pour-over will, it allows you to direct that any assets titled solely in your name are transferred to your trust after your death. This takes care of any accounts or property that you might have neglected to include in the trust, but these assets are subject to probate, unlike assets already owned by the trust when you die.
A graduate of New York University, Jane Meggitt's work has appeared in dozens of publications, including PocketSense, Financial Advisor, Sapling, nj.com and The Nest.