Some assets get transferred at the time of your death simply by operation of law. For example, assets that you own with others as joint tenants automatically become theirs upon your death. Other assets are transferred by virtue of beneficiary designations that you've used on those assets. A prime example would be the beneficiary you've named to receive your retirement account upon your death.

The threat of probate is occasionally overstated. However, relying solely on using the joint tenant form of title or beneficiary designations may fail to accomplish the objective of avoiding probate. For example, without further action, when the last surviving joint tenant on a property dies, it will need to be probated.

Beneficiary designations on accounts generally have the benefit of permitting one to name one or more alternate beneficiaries in case the primary beneficiary dies. Therefore, there's generally some ability to plan for contingencies. That being said, the naming of alternate beneficiaries may not be adequate to cover all of the potentialities of how your asset may need to be transferred. For example, if all of the beneficiaries you've named on a retirement account pass away, that asset may need to be probated at the time of your death to allow your heirs at law to claim it (which, by the way, may not be what you want).

Usually clients are advised to name their revocable living trust as either the primary or secondary beneficiary of assets that utilize beneficiary designations. This may depend on the client's marital status and other circumstances. Naming a trust as the beneficiary of retirement accounts involves consideration of the minimum distribution rules, so it's important to consult with a qualified professional when making changes.

Many people get tripped up on the steps that need to be taken after an estate plan has been set up. For those with simple estates, there may not be much to do after meeting with the estate planning lawyer to sign the documents. For others, additional steps need to be taken to ensure that the estate plan will be fully functional once they become disabled or pass away.

Wills

If your estate plan utilizes a Will as the primary tool to transfer your assets, you're basically done after it's been signed and witnessed. You might have assets that are held as joint tenants that need to be updated or beneficiary designations on assets such as life insurance policies and/or retirement accounts that may need to be revised, but generally speaking there's not too much ongoing maintenance. (Although it is still good to periodically review your Will to make sure that you are distributing your assets to the appropriate people or organizations in your life.)

Revocable Living Trusts

Re-titling Assets

If your estate plan utilizes a Revocable Living Trust, then there are still additional steps that need to be taken to ensure that the trust is what governs the use and transfer of your assets. The primary focus here is on ensuring that assets (other than those that utilize beneficiary designations such as life insurance policies or retirement accounts) are re-titled in the name of the trust. Usually, this means that your property, which you might have previously owned as "John Doe, a single man" will now be owned as "John Doe, as Trustee of the John Doe Living Trust dated January 1, 2018". You will want to change the title to bank accounts, brokerage accounts, real estate, interests in any business entities (e.g., stock or membership interests in an LLC) accordingly. You will also want to revise the beneficiary designations on life insurance policies and/or retirement accounts. 

Beneficiary Designations

For life insurance policies, we generally recommend listing your trust as the primary beneficiary, the idea being that the proceeds from the policy should be distributed in accordance with the wishes stated in your trust. For retirement accounts, spouses will often name each other as the primary beneficiary, and then name their trust as the secondary beneficiary. The purpose for the different approach here is that the law allows for surviving spouses to convert retirement accounts for which they are beneficiaries into a "spousal rollover IRA", which then permits the spouse to continue tax-deferred growth of the retirement account. The trust is named as a secondary beneficiary so that the retirement account can escape probate after the surviving spouse passes away. Single individuals may name their trust directly as a primary beneficiary.

Business as Usual

Making sure that assets are re-titled in the name of the trust and that appropriate beneficiary designations are updated, can be the most time-consuming and frankly annoying part of the estate planning process. After it's done, there's generally no difference in how you live your day-to-day life, and things such as income tax returns and other obligations continue to be the same as they were before you created your estate planning documents.

A basic function of estate planning is to make sure the people or organizations that you want to receive your property actually receives it, but have you really thought about how that would work? Would you just give a lump sum to your teenage son or daughter? If you left money for a charity, how would you know they are using it in the way that you want? What if a person you wanted to leave something to passed away before you--who would get it then? If you have a business, will your partners buy you out? Or, will your family join the business and work in it?

Some Basic Techniques

As a general rule, I think the "KISS" method works quite well in estate planning. (KISS = "Keep It Simple, Stupid") The more complications that get introduced to a distribution scheme, often the more failure points you may be introducing. That being said, there are some basic, tried and true techniques that work and are often good to implement. Here are some of them:

1. Leaving gifts to a young beneficiary in a trust that call for distributions at various ages. Or, if the amounts are rather small, utilizing "CUTMA" to hold the property for the beneficiary until he or she reaches a certain age.
2. Utilizing a marital trust to hold property for your spouse to give him or her lifetime enjoyment of those assets, but also ensure that specified beneficiaries (often children) will receive whatever is leftover.
3. Providing that where a named beneficiary fails to outlive you, the property going to that person will get distributed among his descendants. This is a commonly used provision where you want to benefit not just the beneficiary you've named, but also that person's family.

If you engage an estate planning lawyer, you will undoubtedly face one or more of these concepts depending on your situation (e.g., whether you are in a relationship or have children).