Before someone begins planning his/her estate, s/he should understand that every estate planning technique boils down to 3 basic ways to transfer property at death: 1) by operation of law, 2) by contract, or 3) via probate.
Transfer by Operation of Law
Most everyone has heard of the following way people take title to real property: "Sam Smith and Sally Jones, joint tenants with rights of survivorship." This simply means that the individual who survives the death of the other property owner, automatically receives all of the property interest of the deceased owner. No probate. All the survivor has to do is file a documents in the county in which the property is located to claim ownership. This type of transfer is commonly called "by operation of law."
Transfer by Contract - the preferred way.
Most everyone has heard of life insurance: pay a certain person (put his/her name here) upon my death. So upon the death of someone who bought and paid for life insurance, the life insurance company will pay whom ever is designated to receive the insurance proceeds. Trusts, are the same as a life insurance policy, but the titles are different, and no insurance company involvement. Upon my death, pay a certain person (put his/her name here) whatever is held in my trust. In this case the person who establishes the trust (aka Trustor / Creator / Grantor) is the equivalent of a person who owns a life insurance policy. A Trustee (selected by the Trustor) is the person who will carryout the wishes of the Trustor and is the equivalent of the life insurance company. And finally a trust beneficiary is the same as the beneficiary of a life insurance policy. You can see why trusts are the preferred way to transfer property at death while maintaining privacy and avoiding probate and court involvement.
Probate - the default method
Generally, probate is the process that must be followed through the court system to transfer property to heirs of a deceased after payment of the deceased's debts and administration expenses. Probate is the default way to transfer property at death when property has neither been transferred by operation of law nor by contract. The fact that someone left a Last Will and Testament does not mean a probate is required. That is right, a Will does not determine whether a probate is to occur. All a Will does is direct who will receive probate property (all property that was not conveyed by operation of law or by contract) at the death of a person who wrote the will.
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