Estate Planning Blog Articles

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3 Signs You Definitely Need a Trust (and Not Just a Will)

Estate planning is akin to crafting a roadmap for the future; it’s about guiding your loved ones through the maze of your final wishes with clarity and ease. At the heart of this journey lie two pivotal tools: wills and trusts. While both serve to shepherd your assets posthumously, certain situations demand the finesse of a trust over the simplicity of a will. In this piece, we’ll illuminate the scenarios in which a trust isn’t just a choice, but a necessity.

Understanding Wills vs. Trusts

A will is your voice from beyond, a document that speaks on your behalf after you’re gone. It outlines who gets what, who’s in charge and even who cares for your children. Simple and straightforward, right?

Enter the trust. This legal entity takes hold of your assets, managing and distributing them according to your precise instructions, both during your lifetime and after. Unlike a will, a trust offers a private, probate-free path tailored to complex or unique personal circumstances.

The difference? It’s like comparing a hand-drawn map to a GPS; both guide you to your destination, but one offers a path laden with potential roadblocks and public scrutiny (the will), while the other navigates you through a streamlined, private route (the trust).

You Have a Blended Family

Blended families are like tapestries – intricate, colorful and diverse. However, this beauty can result in complexity when it comes to estate planning. With children, stepchildren and multiple parents involved, a will’s one-size-fits-all approach may unravel the fabric you’ve so carefully woven.

A trust, however, can be the tailor to your tapestry. It allows you to:

  1. Specify exact allocations: Deciding who gets what, when and how.
  2. Protect your children’s inheritance: Ensuring that your children, not just your spouse’s, benefit from your estate.
  3. Avoid unintended consequences: Preventing your assets from unintentionally passing to a new spouse’s children in the event of remarriage.

You Own Property in Multiple States

Owning property in different states is like having multiple anchors in diverse ports. A will, however, could make your loved ones set sail on a stormy probate sea in every state in which you own property. Each state’s probate process can be costly and time-consuming, lengthening the time before your beneficiaries can claim their inheritance.

A trust, on the other hand, unifies these disparate anchors. It allows for:

  1. Centralized management: One entity handling all properties, irrespective of location.
  2. Smoother transition: Bypassing multiple state probate processes.
  3. Cost and time efficiency: Reducing legal fees and administrative delays.

You Value Privacy and Want to Avoid Probate

The probate process is like a stage where your will is the star – open for all to see. This public airing of your estate can be uncomfortable, exposing your assets and beneficiaries to outside eyes.

A trust, conversely, is the private screening of your final act. It shields your estate from the public eye and sidesteps the time-consuming, often costly, probate process. With a trust you’re not just planning; you’re protecting.

Additional Considerations

When it comes to estate planning, one size does not fit all. The decision between a will and a trust should be weighed with:

  • Tax implications: Understanding how each option affects your estate tax-wise.
  • Personalized solutions: Every estate is unique, and so should be its plan.

In the tapestry of estate planning, trusts emerge as a nuanced, flexible thread, weaving through the complexities of blended families, multi-state properties and privacy concerns. If these signs resonate with your situation, it might be time to consider a trust.

Remember, the best estate plan is one tailored to your unique story. We encourage you to seek professional estate guidance to navigate these waters.

Should My Pet Be in My Will?

Most of us love our pets like family, yet chances are you haven’t made a plan for your pets if you become incapacitated or die before they do. This is mainly because it’s unpleasant to consider, according to a recent article from The Washington Post, “What would happen to your pets if you weren’t here?”

In generations past, pets lived in the barn or mostly outside. They ate table scraps and whatever they could catch. Pets now have their own beds, go on family vacation, and are often seen at restaurants, hotels and airports. Americans spent an estimated $143.6 billion this year on pet care.

Contemplating your own death is unpleasant, as is considering your death and distribution of all your assets. However, having a conversation about your pets can give you the peace of mind of knowing your beloved animal companions will be cared for after you have passed or if you cannot care for them.

The problem is, if no plans have been made for the pet, they could end up in a shelter and, worse, be euthanized. This particularly concerns older pets, who are far less likely to be adopted than younger animals.

The first step is deciding who you would want to care for your pets. Who would take your dog or cat? This changes over time, as people in their 40s might think their parents will take their pets. However, ten or twenty years later, their parents will probably not be able to take on caregiving.

Next, have a detailed conversation with the person or people you want to take care of your pets. Is their lifestyle and living situation pet-friendly, and would it suit your pet? Talk with them about your pet’s health history, daily routines, like, and dislikes.

You’ll need a budget for your pet’s care. Add up their basic monthly costs, like food, treats, flea and tick prevention medications, then add in vet check-ups and shots, licensing fees and boarding costs. Build in increasing veterinary expenses, which increase as pets age, just like people. The total will be vital to calculating how much money you’ll need to set aside for your pet’s future care.

Under the law, pets are considered property, so you can’t leave them assets in your will. However, you can establish a trust for your pet, an enforceable legal arrangement for them in the event of your death or incapacity. The pet trust is a stand-alone document. However, estate planning attorneys recommend including a clause about it in your last will and testament to ensure that the people involved know about it and that your estate will adequately fund it.

Wills can take months or years to wind through the probate process, leaving your pet in limbo during this time. A trust is effective as soon as a death certificate is ready.

Your estate planning attorney can help create a pet trust. Then, you’ll need two roles: a trustee to manage and distribute funds and a custodian to receive the funds and use them to house and care for your pet. One person could fill both roles, or you could name a person to handle each of the two roles.

Pet trusts are typically set up as inter vivos trusts, also known as revocable or living trusts. They become effective upon your death or if you become seriously ill or injured. Trusts are set up like any other trust, except the beneficiary is an animal. All fifty states recognize some form of a pet trust.

Because your pets’ needs and the people you’ve assigned as trustees and guardians may change over time, reviewing the pet trust regularly is a good idea. The same is true of your overall estate plan.

Reference: The Washington Post (Dec. 5, 2023) “What would happen to your pets if you weren’t here?”

Why Your Will Is Just One Part of an Estate Plan

When a veterinarian’s third wife left him, he rushed to update his will and estate planning documents to ensure that she wouldn’t get anything when he died. However, the handwritten change he faxed to his life insurance company wasn’t accepted, so his three children from his first marriage spent six years embroiled in a fight with her after he died.

Most people make the mistake of assuming their will is the last word on who receives what when they die, according to a recent article, “Your Will Alone Won’t Guarantee Your Money Goes to Your Heirs,” from The Wall Street Journal. However, certain documents override wills, and chances are you’ve got more than a few: beneficiary forms for retirement accounts, life insurance and some bank and investment accounts. This is the case regardless of whether the accounts were opened through the workplace or on your own.

Failure to update them and your assets could end up in an ex-spouse’s accounts or a court battle. Estate planning attorneys say this is a growing issue as Americans juggle multiple accounts and have more of their net worth in retirement accounts.

You must be sure that all beneficiary forms match your current intent and estate plan. For one employee benefits attorney, the hardest part of the job is writing denial letters to children and parents, advising them they are not entitled to the accounts.

Some laws regarding pensions and spouses need to be explored and clarified. For example, an employee divorces and names an adult child as the new 401(k) beneficiary. The employee then remarries. Under federal law, the new spouse gets the 401(k), no matter what the beneficiary form or will says. The rules vary for beneficiary forms for different accounts, so each needs to be examined.

With 401(k)s, married spouses are automatically entitled to the money unless they formally waive it, and the waiver must be notarized. If no beneficiary and spouse are listed, the employer plan documents determine who is next in line.

With IRAs, in most states, you can name someone other than your spouse as a beneficiary without needing a waiver. You will need a waiver if you live in a community property state, like California or Texas. If no beneficiary is listed, the terms of the IRA agreement determine who inherits the IRA.

With insurance payouts, the employer plan documents control the payout, if the policy is a workplace plan obtained through your employer. If you purchased the policy independently, the insurance company’s rules govern. Litigation typically ends up in state court.

Want to protect your heirs?

Take beneficiary forms seriously, and don’t just sign and forget them. Be sure to include the beneficiaries’ proper name, date of birth and Social Security number.

Keep the documents updated according to the institution’s guidelines anytime there is a major life event, like getting married, divorced, or having children. Some states have laws automatically revoking designation upon divorce, but many do not.

For banks and investment accounts, people sometimes add a “payable on death” designation by filling out a special beneficiary form and then forget about it. If one child is named and not the other, this can lead to hurt feelings and fractured relationships.

These accounts and insurance policies must be aligned with your overall estate plan, or they may not work as you want.

Keep copies of beneficiary forms with your estate planning documents. You may want to send duplicate beneficiary forms to the bank, brokerage house, or insurance company and ask for one back with a stamp indicating it was received. You can sometimes check your account profile online to see if the change you requested has been made.

Reference: The Wall Street Journal (Sep. 30, 2023) “Your Will Alone Won’t Guarantee Your Money Goes to Your Heirs”

Three More Reasons to Have an Estate Plan

Even after COVID, most Americans still don’t have an estate plan. A 2023 survey reported in Kiplinger’s recent article, “Three Overlooked Benefits of Estate Planning,” found that 75% of respondents didn’t have an estate plan. Worse, 72% of all respondents over age 75 didn’t have an estate plan.

It’s an easy task to postpone. No one likes to think about death, their own or their spouse’s. However, not having an estate plan condemns your loved ones to deal with an expensive, time-consuming, stressful mess that can be easily avoided.

Estate planning involves the creation and execution of the documents needed to address healthcare, financial, and legal affairs in case of incapacity or death. This is done with a series of documents created by an estate planning attorney. The names of the documents vary by state, but their function is roughly the same:

  • Guardianship—if there are minor children, the will names who will receive custody of your children if you and your spouse both die.
  • Will—A legal document used to express your wishes to distribute your property, name a guardian and an executor.
  • Trust—A fiduciary agreement used to shield your estate from probate and allow further customization of your estate plan.
  • Durable Power of Attorney—A legal document naming a spouse, partner, or other third party to manage finances if you can’t manage your own decisions.
  • Advanced Care Directive—A document outlining the medical care you want or don’t want if you can’t make or communicate these decisions on your own.
  • Medical Power of Attorney—A document naming a third party to make medical decisions if you are incapacitated.
  • HIPAA Authorization—A document giving another person the right to view medical and insurance records and communicate with healthcare providers.

Why should you go through the trouble of having all these documents created? If focusing on the benefits of having an estate plan is the motivation you need to get going, here are several good reasons to have an estate plan.

Securing management of health care and finances if you’re incapacitated. No one likes to think they’ll ever be too sick to care for themselves or make their own decisions. However, this happens routinely to older Americans. Diseases like Alzheimer’s and other illnesses strike older adults with increasing frequency as they age. If you have an estate plan in place, family members can step in to take care of you if necessary. They’ll be able to pay bills to keep your household running smoothly, speak with your doctors and avoid going to court to obtain guardianship or conservatorship.

Fulfilling your wishes. Lacking a will, the laws of your state will determine how your property is distributed, with most states following a next-of-kin lineage. If you want your spouse to inherit everything and the state law divides your estate so 50% goes to a spouse and 50% is divided among the children, the state law will rule.

Another set of problems comes from outdated wills. If you named someone to be your executor thirty years ago and haven’t updated your will, they may no longer be in your life, or you may not want them administering your estate. Another problem is that if you’ve divorced a spouse and never updated your will, life insurance policies, or retirement accounts, your next call should be to your estate planning attorney and insurance agent.

Avoiding probate. Probate is a process where your will is filed with the court, reviewed by a judge,and approved—or not—to be administered. Depending on the jurisdiction, all documents, including your will, are available to anyone by searching the public records. An estate planning attorney can help you decide what assets you are willing to have to go through probate and what might be removed from your estate using trusts. Trusts provide more control over asset distribution and, depending upon the trust used, can provide protection from creditors and nuisance lawsuits. Trusts are also used in tax planning, which should go hand-in-hand with estate planning.

Estate plans have many benefits. Consider having an estate plan as part of your legacy to protect yourself during your lifetime and help your family.

Reference: Kiplinger (September 6, 2023) “Three Overlooked Benefits of Estate Planning”

When Is a Child Not A Descendant?

Not using specific names and terms open to definition could significantly impact who might inherit from your estate or trust. There are situations where some people may choose to deliberately restrict or expand the definition of the group, which might be included in these definitions, explains the article “Who Is Your Descendant: Intentional Limitations Or Broadening Of Definitions In Your Will Or Trust” from Forbes. For some people, creating a new role of a special trust protector who holds a limited or special power of appointment to determine who should be included or removed from the definition of “issue” or descendant is worth considering.

What might arise if the wish only considers children descendants if they belong to a particular faith? Is this type of legal restriction permitted? Clauses limiting heirs to members of a particular faith or a sect within the faith may raise questions about the constitutionality of the clause. Potential heirs excluded under such provisions have argued that a religious restriction on marriage violates constitutional safeguards under the Fourteenth Amendment protecting the right to marry.

Courts have held clauses determining if potential beneficiaries qualify for distributions based on religious criteria enforceable, if the potential beneficiaries have no vested interest in the assets. Another court upheld the provisions of a will conditioning bequests to their sons as long as they married women of a particular faith.

These decisions are narrowly tailored to the specific fact patterns of the cases, since individuals are generally allowed to disinherit an heir with the exception of a spousal elective share or a community property interest. The courts have reasoned that the restriction is not on the heir to marry but on the right of the testator to bequeath property as they wish.

An alternative approach is to create a single trust for all heirs mandating the funds in the trust be used for the cost of religious education, attending religious summer camps, taking relevant religious studies, religious institutional membership, etc. The trust could use the assets to encourage religious observance. However, it may only partially address the question. What about the remainder of the assets—should it be used for all heirs regardless of religious affiliations?

An estate plan compliant with Islamic law may involve a different determination of who is a descendant. The Sharia laws of inheritance are similar to the intestacy statute. One-third of the estate may be distributed as the decedent wishes. However, the remainder must be distributed as mandated under Islamic law. The residuary inheritance shares after the first third are restricted to Muslim heirs. Additional laws prescribe specified shares of the estate to be distributed to certain heirs, depending upon which heirs are living at the moment of the decedent’s death.

Suppose you or a family member is lesbian, gay, bisexual, transgender, or queer (LGBTQ). The law may not address the unique considerations regarding who may be considered a descendent. Special steps may be needed to carry out your wishes as to who your descendants are. What if you view a particular child as your own, but share no genetic material with a child? Children may be adopted or born through surrogacy, so neither parent nor only one parent is biologically related to the child. While some states may recognize an equitable parent doctrine, this may be limited and not suffice to protect the testator.

There are many new complexities for determining who is a descendant, and these issues are complicated and evolving. Changing family structures and religious beliefs based on different values all impact estate planning. A special trust protector may make decisions when uncertainty arises from provisions in a will designed to carry out the wishes. This is a relatively new role and not permitted in some states, so speak with your estate planning attorney to protect your wishes and heirs.

Reference: Forbes (Aug. 4, 2023) “Who Is Your Descendant: Intentional Limitations Or Broadening Of Definitions In Your Will Or Trust”

Which Is the Best to Way to Transfer Wealth, Trusts or Wills?

Even when everyone in the family grows up and gets along, settling an estate can bring back old sibling battles. It is even more likely if there are large sums of money or valuable property at stake. This makes having a well-prepared estate plan necessary and making those plans clear to family members long before they are needed.

A recent article from The Motley Fool, “Living Trust vs. Will: Which Is The Best Way to Pass Inheritance to Your Family?” explores how best to prepare for the future.

A will, also known as a last will and testament, instructs the executor of your estate how to distribute assets to heirs after your death.

A trust allows you to transfer assets at any time—including while you are still living—however you want, whenever you want. A trustee is the person named in the trust who is responsible for administering the trust. You can protect your children from mismanaging their inheritance with a good trustee and a properly prepared trust.

One of the biggest differences between a will and a trust is that the will takes effect only after you die.It also usually requires review and approval by a probate court. A trust is funded while you are living and does not go through the probate process.

Many people use both a will and a trust for their estate plans.

The will is best created by an experienced estate planning attorney who knows the estate and tax laws of your state. Wills are also used to name your executor and appoint a guardian for minor children. If your children are young, you want this in your will. Remember that when wills go through probate, they become part of the public record. As a result, anyone who wants to can read your will.

Trusts fall into two main categories—revocable and irrevocable. The difference is as it sounds; the grantor can change the revocable trust after it’s created. Irrevocable trusts can’t be changed once established, although some states permit what is known as “decanting”—pouring the contents from one trust into another. Your estate planning attorney will know if your state permits this.

One benefit of a trust is privacy. The trust doesn’t go through probate, so no one but the trustee and, depending on the trust, the beneficiaries, know what is in it. Assets in the trust are also distributed as directed in the trust, so they go directly to beneficiaries. There is no court involvement.

In addition, when assets are placed in the trust, they are owned by the trust and not the person who created the trust (the grantor).

Whether you are beginning to plan your estate or updating an existing plan, your estate planning attorney will help you understand your options, so you can create a plan best suited for you and your family.

Reference: The Motley Fool (July 7, 2023) “Living Trust vs. Will: Which Is The Best Way to Pass Inheritance to Your Family?”

What Should I Know About Wills?

A valid last will lets you do the following:

  • Leave assets to people that would be excluded by the laws controlling property distribution after you die;
  • Change how your assets would be distributed to family members;
  • Establish caretakers for your children; and
  • Create requirements for inheriting.

Forbes’ recent article entitled, “Last Will And Testament: Everything You Need To Know,” explains that a will is a legal document created in anticipation of your death. The best known function of a last will is to determine who gets property. However, a last will can also control other things about your property and responsibilities. It’s an important tool in estate planning and one that almost everyone should create.

There are different kinds of last wills that you can create to take control of your legacy. Let’s look at some of the most common types.

Simple Will. With this last will, assets are left directly to beneficiaries. Simple wills are easy to write in most cases, and you can amend them as needed over time. They are a sound choice for those who don’t have children from a prior marriage, who do not have a lot of assets and who do not have concerns about anyone challenging their last will and testament.

Complex Will. This will is used if you have more specialized needs, such as creating a testamentary trust, which is created within your last will. You create the testamentary trust to transfer ownership of assets into a trust instead of directly to beneficiaries. A complex last will can also be used to create a special needs trust (to leave assets to a person with disabilities who relies on means-tested government benefits) or to create a protective trust for your child.

Holographic Will. A holographic will is handwritten by the creator of the last will (known as the testator). This type of last will isn’t recognized in all states.  A holographic last will must also often meet specific requirements, such as the last will being signed by witnesses present when the testator signed the document.

Living Will. This is much different from the other kinds of wills. A living will does not specify who inherits assets, but rather is aimed at making advanced decisions about medical care. When you create a living will, you specify what kinds of medical care you do and do not want if decisions must be made while incapacitated.

Reference: Forbes (May 18, 2023) “Last Will And Testament: Everything You Need To Know”

What Legal Documents are Needed in an Estate Plan?

If you plan to give away property or assets, you’ll need to create a will, trust document, or other estate planning document, advises KHTS’s recent article entitled “Common Documents An Estate Planning Attorney Can Draft.” Let’s take a look at these:

Trusts and Wills. An experienced estate planning attorney can draft documents, such as a will or trust, to ensure that your property is distributed the way you’d want it in the event of your death. A will can do this. An estate planning attorney can also assist you in keeping assets out of probate court. A trust is crucial if you have to keep the money you give away out of your estate. A trust also protects assets from possible creditors.

Living Trust. A living trust is set up while you’re alive rather than waiting until your death, so that you can change it at any time without court administration. A living trust also doesn’t require probate or court approval. The way money passes through a trust is instead determined by the terms and the state in which you live.

Medical Powers of Attorney. This legal document lets a person delegate specific healthcare decisions, if incapacitated. This document doesn’t supersede a living will or any other advance directive but allows an individual to enjoy more flexibility. A medical power of attorney also allows the individual to appoint a healthcare proxy and someone to the power of attorney who can make medical decisions in their name while they are still capable.

Durable Power of Attorney. This legal document allows individuals to delegate specific authority over their financial and legal affairs. A durable power of attorney also permits the individual to appoint someone as guardian, who can make financial decisions for the individual when they cannot do so. Of course, a guardian can’t make decisions for the incapacitated person in all situations. For example, they may be unable to protect the individual’s assets from creditors. However, a guardian can make financial decisions and has the power to access your bank account, even if you’re incapacitated.

It’s never too early to start planning for your future and estate. However, without the proper legal documents, your property may not be distributed as you would like, or other necessary steps may not be taken. An experienced estate planning attorney will give you options that aren’t available to those who try to do it themselves.

Reference: KHTS (Dec. 15, 2022) “Common Documents An Estate Planning Attorney Can Draft”

Top 10 Estate Planning Myths

Estate planning addresses many issues, from who inherits your property or handles your finances to who takes care of you if you’re incapacitated to who manages funds for a disabled child. Unfortunately, there are many myths around estate planning, as explained in the recent article “Debunking the Top 10 estate planning myths” from Insurance News Net.

Only wealthy people need estate planning. This is easily the biggest myth of estate planning. Estate planning addresses planning for incapacity and taking care of your legal and financial affairs if you can’t. It also includes planning for end-of-life care and delineating what medical procedures you want and don’t want. Estate planning also creates a plan for families with minor children, if something should happen to parents.

Having a will means avoiding probate. Probate is the court process where the court reviews your will, establishes its validity and allows your executor to administer the estate. If your goal is minimizing or avoiding probate, talk with an estate planning attorney about retitling assets and creating trusts.

You need a trust to avoid probate. A trust is only one way to avoid probate. You could consider titling assets as joint tenants with rights of survivorship, although there are risks involved in doing so. Depending on your state of residence, you might also consider various transfer-on-death arrangements. Assets with beneficiary designations, like IRAs, 401(k)s, annuities, and other financial accounts, pass directly to beneficiaries.  You might also give away assets while you are living.

Putting a house in joint and survivorship ownership with an adult child will avoid probate. You may avoid probate. However, you create tremendous risk with this move. If your adult child becomes a half-owner, you’ll need their okay—and their spouse’s approval, too—to sell the house. You won’t qualify for the tax-free sale of your personal residence on half of the sale proceeds, unless your child also qualifies. If your child has financial problems or undergoes a divorce, their half ownership could be attached by creditors or be owned by an ex-spouse.

My will says who will inherit my IRA. The beneficiary designation on IRAs, life insurance and retirement accounts, and any account with a beneficiary designation overrides whatever your will says. The will does not control annuities, payable on death accounts, or transfer on death accounts and affidavits. You should check these forms periodically to ensure that the funds go where you want them to go.

I don’t need a will if my beneficiary forms are correct. However, you still need a will. For example, if a child dies before you, what happens to the assets if they were the beneficiaries? What happens to assets if a beneficiary is not of legal age and cannot inherit the money directly? Who makes decisions if there are multiple children and real estate decisions that need to be made? What if an adult child has a debt problem? Who will pay your final expenses? These are just a few issues that are addressed by wills.

A revocable trust will protect assets if I enter a nursing home. Totally wrong. Medicaid planning usually involves an Irrevocable Trust to protect assets. Revocable trusts will not make you eligible for nursing home care.

Trusts avoid probate. Assets in a trust don’t go through probate. However, it is only if the trust is funded. Assets must be immediately placed in the trust, usually through re-titling, or postmortem through beneficiary designations. Otherwise, the assets go through probate.

If my will says, “per stirpes,” my grandchildren will inherit assets if my adult children die first. This oversimplification of a complex issue is typical of estate planning myths. Grandchildren only inherit assets if the adult children die before the grandparent. If you want your grandchildren to inherit assets, you need a “bloodline” trust. An estate planning attorney will help you accomplish this.

I only need a will and a trust for my estate plan. This is another big mistake. An estate plan includes documents for incapacity and end-of-life, including Power of Attorney, Health Care Power of Attorney, Advanced Directives and a Living Will Declaration.

Reference: Insurance News Net (March 15, 2023) “Debunking the Top 10 estate planning myths”

Probate: What Is it? How Does it Work?

Many times, the word probate carries a negative connotation and it’s often positioned as something to avoid at all costs. According to a recent article “The Legal Corner: Pros and Cons of Probate” from The Huntsville Item, it’s important to understand the role probate plays in the estate planning and administration process. A comprehensive estate plan can minimize the probate process, and in some instances, it is a convincing reason to have a professionally created estate plan.

In cases where there is no will, the probate system ensures that all accounts and property are distributed in accordance with state law. There are potential benefits to having an estate go through probate in the administration of a decedent estate, including:

  • Probate provides a reliable procedure for the distribution of the deceased’s property in the absence of a will.
  • If a will exists, probate validates and enforces the wishes of the decedent.
  • Probate ensures that taxes and valid debts are paid, so beneficiaries are not left with an uncertain feeling regarding the decedent’s affairs.
  • If there were debts or unpaid bills, probate provides a means of limiting the amount of time creditors have to file claims, which may result in debt discharge, reduction, or other advantageous settlements.
  • It allows for third-party oversight by a court, potentially reducing family conflicts and in certain instances, encouraging family members to act properly.

There are also reasons to avoid probate. An experienced estate planning attorney can create an estate plan where wealth and property pass directly to beneficiaries, avoiding or minimizing all or part of the estate going through probate. These include:

  • Privacy is a big benefit of avoiding probate. Probate is a matter of public record, so certain documents, including personal and financial information, are accessible to the public. This is why wills should never have specific account names and numbers included.
  • Probate means that your estranged family member will be able to find out how the estate was distributed and read the will, even if you didn’t wish this to happen.
  • Probate can be costly. Probate requires court fees, attorney fees and executor fees, which are then deducted from the value of assets intended for loved ones.
  • Probate can be time-consuming, depending on where you live. In some jurisdictions, probate courts run smoothly. However, this is not aways the case. If the family is depending on receiving assets quickly, for example, if funds are needed in order to maintain the decedent’s house so it can be sold, probate will require them to find other resources.

An estate planning attorney will be able to review the estate and determine which assets can be transferred to heirs through other means to avoid having the entire estate go through probate. They will also be familiar with the courts in your local jurisdiction and know how long it will take, if the estate needs to go through probate.

Reference: The Huntsville Item (Feb. 12, 2023) “The Legal Corner: Pros and Cons of Probate”