Avoid Probate With a Living Trust in Addition to a Will

Ensuring that a client's estate does not go through probate is one of the main goals of estate planning. Why? Because probate costs money, takes time, and can cause major aggravation.

First, here are some of the important terms in estate planning: Living Trust - a trust set up during a person's lifetime (during which the trust may be changed or revoked) to avoid probate.

Probate - the legal process by which a will is proved to be valid and binding (can be a lengthy and expensive process).

Will - a formal legal document directing the disposition of assets upon death.

Why it is important for an estate to avoid probate: In the May 2008 American Bar Association Journal an attorney in Chicago says: "Probate in Illinois is relatively painless, so long as there is no litigation associated with it. Probate requires only two court appearances, and the decision-making does not require court approval, so long as there is no litigation or upset heirs interfering with the administration of the estate." There can easily be totally unexpected upset heirs interfering with the administration of the estate. And even just paying an attorney's hourly rate for two court appearances and various court filings can cost heirs a great deal of money.

Probate fees can take a big bite out of a small estate: Attorney's and executor's probate fees are set by law in some states, such as in California. The estate's attorney in California will be paid $13,000 for a small estate of $500,000, which with California housing prices is a small estate. And if the executor doesn't waive the fee, he or she will also receive a fee of $13,000.

For an estate that might consist of only a small residence there can be $26,000 in fees! Plus court filing fees, probate referee fees, certified copy fees and aggravation too much to mention.

Privacy issue - probate is a public process: Another problem with probate is that it is a public process. Anybody who wants to can read a will as it becomes part of the records of the courthouse. If there's a contentious relative being left out of a will, or if privacy is valued, probate should definitely be avoided.

A living trust solves these problems: What is needed so that an estate doesn't have to go through the legal obstacles of probate? A will is not enough to avoid probate. A living trust is needed.

A living trust has the same instructions for the disposition of property that would be expected in a will. But since the trust is a pre-existing legal entity, it continues after death. Therefore, the estate does not have to go through probate since there are no assets that have to be "proved."

Pour-over will takes care of any assets not transferred to the trust: In case there are any assets that have not been transferred to the trust, a will is still needed. For example, the proceeds of a wrongful death lawsuit would be picked up by the will because these proceeds didn't exist at the time the trust was set up. The will is known as a "pour-over" will because the will "pours" everything it covers into the trust.

The above information is only considerations for you to discuss with your own estate planning attorney; the information is NOT legal advice. The providing of this material does not establish an attorney-client relationship.