What is probate?
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.
What does probate have to do with incapacity?
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!
Does a will avoid probate?
No. While having a will is usually a good idea for many reasons, it does not avoid probate.
How can I 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.
How does a Revocable Living Trust help avoid probate?
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!
Is it hard to transfer property to a Revocable Living Trust?
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.
Aren’t Revocable Living Trusts expensive?
No. While costs can vary, they are very reasonable when compared to the potential costs and difficulties associated with probate.
Can’t I get estate documents for less money from a “do-it-yourself” kit online?
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.
How do I choose a guardian for my children? Who should serve as my personal representative? Who should serve as the trustee? How do I decide who gets what and when?
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.
I already have a will (or trust, power of attorney, healthcare power, living will, estate plan). Do I need to update it?
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.