Why is Probate to be avoided? Well, first of all, it can be very expensive. Legal and Executor fees and other costs have to be paid before your assets can be distributed to your heirs. Normally, the basis for Probate compensation is based on the value of the property in your estate. If you own a residence or other real property, this means that Probate fees can be quite high. Moreover, if you own property in other states, your heirs could face multiple Probates each one according to the laws of that state. Another disadvantage of Probate is that it usually takes time to complete the court process — anywhere from 9 months to 2 or 3 years, but sometimes, much longer. During this period of time, assets are typically frozen so that nothing can be distributed or sold without a court order and or Executor approval. Distributions or family allowances are sometimes difficult to obtain. Another disadvantage is that Probate is a public process so any “third party” can have access to the Probate records and see what property the decedent owned or who their creditors are. This process can be an open invitation to heirs to contest the Will and can expose the heirs to unscrupulous solicitors. In short, your family loses control because the Probate process determines how much it will cost, how long it will take and what information is made public.
From the foregoing, it is easy to understand why most knowledgeable people attempt to avoid the Probate process by setting up and putting in place a Living Trust. A Living Trust is a legal document that is, hopefully, prepared by a competent attorney, that is similar to a Will that contains your instructions for what you want to happen to your property when you die. However, unlike a Will, the Living Trust eliminates the Probate process because if your Living Trust is properly funded, the Trust (which you control) actually owns your property and continues on in spite of your death. Accordingly, there is nothing for the courts to control when you die or become incapacitated. The concept is relatively simple and most of the time it works to keep you and your family out of the courts.
However, a few years ago, I had some clients come in to me upon the death of their father thinking that the Probate process would be avoided because their father had purportedly set up a valid Living Trust. They brought the Trust document to me for inspection and upon review I concluded that although the document was not a legal work of great art, it would probably suffice to get the job done and have the property divided equally among the three children as the father desired. The father didn’t consider himself that wealthy, but he did own a residence free and clear in Southern California and had managed to save a few hundred thousand dollars because of his retirement and a few other investments. The father had gone to some sort of a trust mill legal office that had advertised Living Trusts and Wills for a very nominal fee. The children had encouraged their father to take care of his estate and to set up a Trust and had recommended that the father make an appointment with a competent attorney. Unfortunately, in an effort to save a little money, the father had decided to utilize the services of the so-called legal shop advertizing the nominally priced Wills and Trusts.
Now comes the real bad part. While it is true that the father had attempted to set up a Living Trust, what had not happened is that the Trust was not funded. The legal shop who had prepared the Trust did not properly supervise the funding of the Trust — that is the re-titling of the father’s assets into the name of the Trust. Moreover, there was no indication in writing of what the father intended to place into the Trust.
Accordingly, the wishes of the children and also the father to avoid Probate were thwarted because the Trust wasn’t properly funded. Therefore, the children had to open up a Probate and go through the expense, inconvenience and time consumption of this sometimes complicated court process. Moreover, the father’s ex-wife (not the mother of his children), then found out about the Probate and attempted to make a claim on the assets therein. Fortunately, we were able to defeat her attack, but it cost money and additional time.
Well, what is the lesson to be learned? First of all, make sure that when you do your Estate Planning, you employ a competent attorney who has experience and the necessary qualifications to draft the proper instruments and see to it that the Estate Planning structure is properly implemented. Moreover, even many so called knowledgeable Estate Planning attorneys fail to make the extra effort necessary to properly fund the Trust. Remember, that funding the Trust requires a re-titling of assets. In the case of real estate, this means that deeds have to be drawn up, executed and recorded. You need to change title on all your bank accounts, stock accounts and other investments. Where appropriate, beneficiary designations on some assets like insurance need to be changed to your Trust so that the proceeds thereof can be distributed according to your Estate Plan. Doing things right in the first place saves money, inconvenience and time later on.