Probate is a legal process by which a deceased person’s affairs are settled; debts are paid and assets are distributed to heirs or beneficiaries. Assets subject to probate are those assets owned by the deceased party without a survivorship interest in another party. For instance, husband and wife acquire a house that is titled in both names with a right of survivorship. The marriage is continuous and uninterrupted until one spouse dies. Full interest vests in the surviving spouse by operation of law and the property is not subject to probate. Other examples of property not subject to probate are insurance and retirement plans with a named beneficiary, bonds with a ‘pay on death’ provision, or monies held in bank accounts titled as a joint tenancy.
The probate process can be quite involved and time consuming.
CAN I AVOID PROBATE ?
A popular vehicle to avoid probate is the “living trust” or “inter vivos” trust. The trust can be either revocable or irrevocable. Assets held jointly with a right of survivorship, such as a banking account, plus items such as life insurance and retirement plans pass outside of probate. When you utilize a trust, assets held by you individual that would be subject to the probate process are transferred to the trust. The assets become owned by the, trust subject to the terms of the trust, and pass outside of probate. By avoiding the probate process, your heirs also avoid the stress and expense which could run from 3% to 6% of the gross value of your estate.
The living trust allows you to give consideration to step-children or foster children that you have not adopted and would otherwise have no legal claims to your assets. You can also disinherit persons who would have a legal claim to your assets.
A special consideration and advantage of the living trust to individuals who believe they may need help in handling their affairs at some future point in time. When an individual becomes unable to handle their own personal affairs and no provisions have been made for someone to step in and assume responsibility, a court proceeding is required. The proceeding is a two part preceding which first requires an adjudication of incapacity and then a petition is filed for appointment of a guardian. The person appointed may be guardian of the person, or guardian of the person’s property, or both. The proceeding is time consuming, costly, and could be humiliating to the person. A properly prepared living trust could avoid the necessity of court proceedings.
Another popular form of trust is the testamentary trust created under a Last Will and Testament. This type of trust is often created for the benefit of an heir who may still be a minor and cannot control their own affairs. The trust is also popular in a circumstance where an heir may not be a minor or incapacitated by age, but may be incapacitated for other reasons. A testator or settlor would want to create a special trust to assure that the incapacitated person is properly and comfortable cared for.
Trusts are not uniform in structure and terms. They can be created to satisfy your specific needs or requirements. You may be in a situation where your needs or requirements can be met by other means such as conveying the real estate and reserving a life estate or granting someone a power of attorney to assist with handling your affairs.
The only way to determine whether a trust is right for your circumstances is to review your specific needs and requirements. Should your situation require an attorney that is more highly qualified, we are more than happy to refer you to someone that can meet your expectations.