Probate, or the settlement of an estate in the courts, is triggered upon the death of a person who has a Will as his or her Estate Planning legal tool. Probate also happens when there is no Will.
However, there are cases when Probate is not automatically triggered. For example, when there were legal documents in place which will keep the estate out of Probate.
The most common Estate Planning documents that help people avoid Probate fall under the category of Trusts.
However, avoiding Probate by means of a Trust is not simply a matter of creating a Trust fund on your own, or by using software from a website. In fact, this is a very risky thing to do. Only an attorney who’s trained in Estate Planning should create a legally-binding Trust such as a Living Trust.
Even with a legal Living Trust in place, the tool may not guarantee that you avoid the courts.
This is because a Living Trust is more of a dynamic tool than most people think. It has to be managed properly, especially in regards to the ongoing transfer of assets into the Trust. Not complicated, but important.
Changing family situations may affect how a Living Trust works and whether it can keep you out of Probate. Factors such as divorce (whether you, your children, even your grandchildren), re-marriages, perhaps loved ones who suddenly need special care – these changes in life may necessitate changes to your Trust.
Probate, which can vary from state to state, was actually created to protect individuals and to offer a legal structure for the settlement of estates – so it’s by mo means a bad thing.
But many people like to keep their affairs private, and Probate matters are public record.
Many Estate Planning tools, to remain binding, must be reviewed and modified from time to time as personal situations change.
An attorney trained in Estate Planning can create the tools that offer you the most protection, and he or she – importantly – can act as a counselor on an ongoing basis so that your Estate Plan will have the intended results you planned for.
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