There are those that think an executor can read the terms of a will to the people named in it and distribute assets immediately. In reality, this is not the way it works.
The will must be admitted to probate, and the court will provide supervision during the estate administration process. The court also has jurisdiction when a deceased person dies without any type of estate plan.
When a will is executed, the executor or personal representative named by the testator (the person who created the will) will administer the estate. The court will appoint a personal representative to assume the role if no one has been designated by the decedent.
Final debts must be paid during probate before the remaining assets can be distributed to the heirs. Creditors must be notified and given a certain amount of time to come forward with their claims.
There must be a “proving of the will” during probate. The court will examine the document to determine its validity. If anyone wants to challenge the will, this must be done within the time specified.
Many expenses accumulate during probate, including executor’s fee, attorney fees, court costs, appraisal and liquidation charges, and in some cases, accounting fees. The money spent during probate comes out of the pockets of the rightful inheritors.
Probate is a public proceeding. Anyone with an interest can find out all the details, and this loss of privacy can be problematic in some cases.
How Is Probate Avoided?
Now that you know why you may want to avoid probate, we can take a look at a widely embraced probate avoidance strategy.
The revocable living trust is an estate planning device that is a better choice than a last will for a wide range of people. When you establish a trust, you do not have to worry about losing control of the assets. You will act as the trustee and initial beneficiary, so you have direct access to the resources.
In the trust declaration, you name a successor trustee to assume the role after your passing, and you name the heirs who will be the beneficiaries. When the time comes, the trustee will distribute assets to the beneficiaries in accordance with your wishes. The probate court will not be involved.
And speaking of “your wishes,” you an dictate the terms of the distributions. For example, you can put restrictions in place if you are concerned about a loved one burning through an inheritance too quickly. You simply instruct the trustee how and when you want the funds distributed. You have total flexibility.
You can account for your possible incapacity by naming a disability trustee to administer the trust if you are unable to make sound decisions on your own.
Another good thing about a living trust is the ability to alter the terms. You can change beneficiary or trustee designations, add or remove property from the trust, and make any other changes you choose.
Schedule a Consultation Right Now!
There are many different tools in our estate planning toolkit, and each case is different. There is not one universal way to plan an estate effectively, which is why you should discuss your options with a licensed attorney.
We can gain an understanding of your situation and explain your options. When you make your decisions, we can apply our expertise to devise a custom crafted plan that is ideal for you and your family.
If you are ready to get started, we can be reached by phone in Oklahoma City at 405-843-6100, or in Overland Park, Kansas at 913-385-9400. We also have a contact form on this website which you can use to send us a message.