Many people have misconceptions about the way that things transpire after someone passes away, and probate lawyers often clear them up. Here is one very common scenario that we hear about. When you think about the way that inheritances are distributed, you may conjure images of scenes that you have seen in movies and on television shows. There is a funeral, and people gather at the home of a family member after it is over.
Certain people are called into a room where a meeting is convened, and there is then a “reading of the will.” The idea is that the executor that reads the will has the power to distribute the assets right away, independent of any supervision.
In fact, this is not the way it works. If a last will is used as the vehicle of asset transfer, it would be admitted to the probate court after the passing of the testator of the document. The executor would take care of the hands-on estate administration tasks if an executor was named in the will. If there is no executor empowered, the court would be forced to appoint a personal representative to act as the estate administrator.
An executor that is named in a last will is often going to be a family member or trusted friend. The individual may be a competent, willing person, but there are many complicated tasks that must be completed during the probate process, and there are legal requirements that must be met. If you have no experience working with the probate court, the administration of an estate can be quite daunting.
This is where probate lawyers can enter the picture to make a positive difference. The probate attorney can work alongside the executor to make sure that everything is done properly. If you were to come to us to draw up a last will, we can be engaged at that time to act as probate lawyers after your passing. Since we would have a thorough understanding of your estate and your final wishes, we would be ideally positioned to facilitate a smooth passage through the probate process.
A lot of people simply assume that a last will is the only way to go if you are not a multimillionaire. While it is true that very wealthy individuals with complicated holdings utilize trusts, there is a particular type of trust that is very useful for people of relatively ordinary means. The asset transfer vehicle that we are referring to is the revocable living trust.
If you were to create a revocable living trust, you would be called the grantor, and the beneficiaries would be the heirs that you want to leave the assets to after you are gone. You would also name a trustee to administer the trust after your death. It would be possible to give this trustee the power to administer the trust in the event of your incapacity. This is an important consideration, because Alzheimer’s disease strikes a very significant percentage of the oldest old.
This can be someone that you know personally, but many people use a professional fiduciary like a trust company or the trust department of a bank. The utilization of a professional trustee can be a very good choice, because there would be no conflicts of interest, no allegations of favoritism, and there would be organizational oversight every step of the way.
There are a number of reasons why a revocable living trust can be a better choice than a last will. As we have stated, you can empower a disability trustee when you have assets in a trust. Plus, the asset transfers would not be subject to the probate process. Probate is lengthy; it can take six months to a year, even if there are no complications, and some estates are stalled in probate for considerably longer. The heirs cannot receive their inheritances while the estate is being probated.
There are probate costs that reduce the value of the estate, and this is another negative that is avoided when a living trust is in place. Another benefit is the ability to include spendthrift protections. It would be possible to have the trustee distribute limited amounts of money over an extended period of time. When a last will is utilized, the heirs receive lump sum inheritances.
Attend a Free Estate Planning Seminar!
Our probate lawyers are offering a series of free estate planning seminars. We have a number of them planned, so you should be able to find a session that fits into your schedule. To see the list, simply click this link: Mount Clemens Estate Planning Seminars.