If you discuss your estate planning options with a probate lawyer, you may come to the conclusion that you would like to implement probate avoidance strategies. Why would you want to avoid probate? Let’s look at the answers to this question.
You may assume that you should use a last will to transfer assets to your loved ones because your situation is not that complicated. In the will, you name an executor or personal representative. This is the individual who handles the estate administration tasks after you die.
Many people assume that the executor can simply follow instructions that are left behind in the last will. Assets are distributed to the heirs shortly after the passing of the decedent, and that’s the end of it.
In reality, this is not the way things unfold. Under the laws of the state of California, property that was in the direct personal possession of the decedent at the time of his or her passing would become probate property initially.
The probate court would supervise the administration of the estate after the will was admitted to probate by the executor.
This process can make things somewhat difficult for the heirs to the estate. The biggest difficulty for most people is the time consumption. The probate process does not run its course in a week, or even a month. A relatively simple and straightforward case will be stuck in probate for perhaps eight months to a year in most areas.
This can be a long time to wait for an inheritance, especially if you are relying on the decedent for support to one extent or another.
In addition to the consumption of time, there is also the financial factor. Probate is not free. There are a number of different expenses that arise during the process. There is a filing fee, there will typically be legal expenses, accounting fees, appraisal charges, and liquidation expenses. These expenditures are going to reduce the value of the estate, and this is money coming out of the pockets of the heirs.
Some people have privacy concerns. You may not want anyone and everyone to know how you decided to distribute your resources. When an estate passes through probate, probate records become available to the general public, and this can be another negative.
When you consult with a probate lawyer about the options that you have, you will hear about revocable living trusts. This is a type of trust that can be used by people who do not consider themselves to be extraordinarily wealthy.
There is no loss of personal control when you convey assets into a living trust. The person who creates the trust is called the grantor, and the grantor can act as the trustee throughout his or her life. Plus, this type of trust can be revoked, so you can change your mind, dissolve the trust, and take back direct personal possession of the property if you choose to do so.
You name a successor trustee when you create the trust agreement, and you name your heirs as successor beneficiaries. After you pass away, the trustee would be able to distribute assets to the beneficiaries in accordance with your wishes free of the probate process.
Plus, you could instruct the trustee to distribute limited assets on an incremental basis to prolong the viability of the trust. There would also be a level of asset protection, because you can include a spendthrift provision, and the trust would become irrevocable after you pass away.
Learn More About Probate and Living Trusts
We have provided an overview in this post, but we have additional resources available to you if you would like to gain a more in-depth understanding of the probate process and the ways that probate can be avoided.
Our firm has prepared a series of in-depth, comprehensive special reports. These reports cover many different important estate planning and elder law topics. They are housed in an electronic library that you can access right here on this website.
The reports are being offered on a complimentary basis at the present time, so you can access any or all of them free of charge with the simple click of a mouse. This is a great opportunity to build on your knowledge.
One of our reports puts the probate process under the microscope, and you can click the following link to gain access: Free Probate Report.
We also have a report on the value of revocable living trusts, and you can visit this page to get your copy: Living Trust Report.
To Schedule a Free Consultation
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