“The vilification of probate extends nationwide and affects everyone’s perceptions.”
Progressive states like California have led the charge in finding and implementing methods and techniques to avoid probate, reports The PV Democrat in its recent article entitled “Avoiding probate - panacea or problem.”
We’ve seen numerous articles that discuss the role of trusts in estate planning, which frequently advise you to make every effort to avoid probate. But this isn’t always the right answer.
Probate is a court process that’s designed to protect your intentions for the distribution of your assets after death. It gives finality to creditor claims against the estate and authorizes the probate court to insure compliance with a decedent’s wishes. It requires that an individual’s financial assets be defined, insures that they’ll be given to the proper persons and provides a procedure for protecting the distribution that was planned by the decedent.
There are some risks in using a trust rather than going through probate. They include these items:
Legal Contests. When someone is left out of a trust or if the trust assets are improperly restricted in their use, then he or she can initiate a contest. Undue influence is frequently alleged when a trust is created just before death.
Probate Protections. A will requires two or more witnesses, written testimony of the witnesses and must be notarized in some states. However, a trust can be created with just a signature and even implied in some instances with no written document. Therefore, it may be easier to create an improper trust than an improper will.
The Potential for Mistake and Misuse. If the document is a trust, a transfer on death account (TOD), a joint ownership or a simple deed, it is easier to have an elderly loved one sign a single document like a trust, instead of trying to have him or her pass the scrutiny of two witnesses and a notary, as required for a will.
The use of estate planning techniques other than a will and probate may often be simpler and perhaps easier to implement and administer after death. However, they need to be carefully planned and completed well in advance of death. Otherwise, it can mean family conflicts and court challenges. Work with an experienced estate planning attorney and see if a trust is right for your situation.
Reference: (Pauls Valley OK) PV Democrat ((September 27, 2017) “Avoiding probate - panacea or problem”