Probate is a court supervised process to settle the estate of someone who died (called a decedent). This usually entails proving the validity of the decedent’s will, appointing a personal representative, providing notice to creditors and potential heirs, gathering and accounting for the assets of the estate, paying all valid creditors, and then distributing the remaining balance to the estate’s beneficiaries.
While this can be a daunting task for just about anybody, it can be especially difficult for the survivors after having lost a loved one. Probate can also be a costly process, involving court fees, commissions to the personal representative, attorney’s fees, and, in some cases, appraiser’s and guardian ad litem’s fees.
Incapacity is a term associated with someone who is permanently or temporarily unable to make legal decisions. If you become incapacitated, you cannot legally sell or refinance your own property or even withdraw funds from your own bank account unless someone signs for you. If you have not made other arrangements in advance, only an agent of the probate court may sign for you. This means that your family may be forced to involve the probate court simply to do what is right for you!
No. While having a will is usually a good idea for many reasons, it does not avoid probate.
There are several non-probate transfer techniques that can be utilized to avoid probate depending on the type of property you own and what you hope to do with it during life and after death. One way to avoid probate is to make use of certain registration and beneficiary designations such as joint tenancy with rights of survivorship, payable-on-death, and beneficiary deeds. Another way to avoid probate is to transfer your property into a Revocable Living Trust.
First, it is important to define what is meant by a “trust” in this question. Most likely, the question is referring to a revocable living trust.
The major difference between a will and a revocable living trust is that assets passed by will must go through probate, but assets controlled by a trust do not. Revocable living trusts can be written to protect beneficiaries in various ways that a simple will cannot. For example, a revocable living trust allows for delayed distribution options that may be helpful to avoid young beneficiaries from blowing an inheritance due to age, inexperience, disability, or substance abuse. Also a revocable living trust can help in the management of assets during the trust creator’s life, while a will only becomes operative at the will creators death.
On the other hand, trusts cannot be used to nominate a guardian for minor children or selecting a personal representative. So a revocable living trust does not replace a will, rather they work well together to provide much more benefit than a simple will can do alone.
When you transfer your assets to a Revocable Living Trust, the trust – not you – becomes the owner of your property. However, you can maintain control of those assets by naming yourself as trustee. And, even if you elect to name someone else as your trustee, you can revoke the trust at any time.
If you die or become incapacitated, the successor trustee – not the probate court – will administer the trust property according to the terms of the trust instrument. By transferring all of your property into the trust, there is nothing left for the probate court to oversee!
No. Transferring property into a living trust is not a difficult process. Your attorney can usually guide you through the process. Some firms, such as Seiter Law, offer this for no additional charge to clients.
No. While costs can vary, they are very reasonable when compared to the potential costs and difficulties associated with probate.
Probably. Well, at least initially. Do-it-yourself projects usually cost less than using a qualified and experienced professional. However, you usually get what you pay for. Saving a little bit of money in the beginning could end up costing much more in time and money in the end when it really matters.
These are the types of questions that people care about deeply because they lie at the heart of what really matters to them. These are just some of the questions that a competent and caring attorney can help you with.
Please contact Seiter Law for a free consultation.
Wills, trusts, powers of attorney, and other estate planning documents can become out of date – sometimes in a very short period of time. Major life changes such as: moving to another state, the birth of a child or grandchild, marriage or divorce of an heir, or the death of a spouse usually warrant at least a review of your estate planning documents. Significant financial changes such as buying or selling real estate, or purchasing or terminating a life insurance policy can also reduce the effectiveness of your current estate plan.
For a free review of your current estate planning documents, please contact Seiter Law.