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Avoiding Probate is a Matter of Trust

Father Catching Son

“Avoiding probate” is a buzz word that is often used and sometimes confused. Many people don’t understand the probate process, even by people who are quite sure it should be avoided. For instance, Wills do not “avoid probate”, and probate does not subject an estate to taxation, though both things are often believed to be true.

So, what is probate? Should it be avoided? How?

This article will explain the probate process, the reasons people typically want to avoid it and the best way to plan an estate to avoid the probate process. There is more than one way to avoid probate, but not all ways are created equal.

“Probate” generally refers to the process by which an estate is handled after a person dies. It is not the only process, but it is the default process. If a person has not done the estate planning to provide for a different process, probate is the process created by state statute for handling the affairs of a decedent (a person who has died).

Characterized a different way, probate is the process required to handle “probate assets”. Assets are considered “probate assets” when no other mechanism exists to transfer the assets a person owns when he/she dies.

Mechanisms that avoid probate will be discussed below, but first we need to understand what the probate process is and why one might want to avoid it.

The probate process is a court proceeding that takes place through the court system. The person with the authority to handle the probate administration is an executor (if there is a Will) or administrator (if no Will). The probate administration includes dealing with claims of creditors and other “interested” persons, paying expenses, debts and taxes, and ultimately distributing the assets to the heirs (if no Will) and/or legatees (if there is a Will).

The probate process is a long one because state law requires certain minimum things to be done, starting with a petition to open the probate estate that includes certain minimum information and documentation.

After filing the petition, opening the probate estate and obtaining “letters testamentary, notices must be mailed to all heirs, legatees and creditors, and notice must be published in a newspaper of general circulation in the county in which the decedent was living when he/she died. That triggers a 6-month period during which people have opportunity to assert claims or raise issues that need to be resolved.

Even after the claims period ends, the process is not completed until a full accounting is prepared, a final inventory is done, attorneys’ fees and administrative fees are approved and paid and all the interested parties sign off on the documentation to close the estate.

The probate process involves time and effort on the part of the executor or administrator, who is entitled to be compensated. It requires the retention of an attorney who is also entitled to be paid. It involves costs including court filing fees, publication costs and other expenses.

Generally, the probate process in Illinois usually takes nine (9) months on the short end to a year or more, even for a simple estate. The process is overseen by a judge who sits in the probate court. It may involve court appearances and the filing of documentation, including an inventory of the estate and an accounting before the estate can be closed. The probate process, like other court proceedings, is also a public process, and the probate files are public documents.

The main negatives of the probate process are the delay in the ultimate distribution of the estate, the cost of the process, and the public nature of the proceeding and the records. These are primary reasons people want to avoid probate.

Property owned in a trust is not subject to the probate process because the trust controls the ultimate disposition of the property, both before death and after death. A living trust (a trust created during life) has a built-in mechanism for assets to pass on death (to the named beneficiaries) so that property in the trust isn’t required to go through the probate process

Living trusts are the best way to avoid probate and to pass an estate on after death. Living trusts are trusts set up during life. The person who created the trust, funded the trust and oversees the trust (the settlor, grantor and trustee) controls the property in the same way as the property was controlled before it was transferred to the trust because he/she is also the benefactor of the trust (beneficiary). A living trust is just another way of owning your own property, but there are tremendous estate planning advantages.

A living trust protects assets during one’s life. Typically, a living trust names a spouse or other trusted person as successor trustee. The successor trustee takes over the trust if you become unable to manage your own assets (for example, due to Alzheimers or other conditions) and after you die. Additional successor trustees can also be named to ensure that a trusted person will always be in place to carry out the instructions you leave for Trust.

The trust, therefore, directs exactly how the assets are to be handled during your life and after your death. While you are alive, the trust directs the trustee to use the property for your benefit. As long as you are the trustee of your own trust, you carry on with your life as you do now. If you become incapacitated so that you are unable to manage your own affairs, then the successor trustee steps in and takes over.

When you pass on, whoever you have named as the successor trustee carries out the directions of the trust ending with the distribution of the trust property to the beneficiaries as you have instructed. In this way, a Trust takes the place of a Will and directs how the assets are to be distributed upon death. There is no need for probate because the Trust contains all of the instructions for handling the estate, and the property in a the Trust is not subject to probate. The Trust contains all of the terms for passing on the property after death.

A trust takes a bit more work and expense to set up. The trust document is more involved than a Will, and the Trust needs to be “funded” (assets need to be transferred into it). A trust, however, avoids the cost and delay of setting up a guardianship (if the settlor/grantor becomes incapacitated during life) and streamlines the administration of the estate after death by avoiding the cost, delay and burdens of the probate process.

All of your assets that have no beneficiary designations can be transferred into the trust during your life, and you can have assets with beneficiary designations go into the Trust by naming the Trust as the primary of successor beneficiary. In this way, the Trust can be the collector of all your assets under the control of your trustee, and the Trust can be the backup beneficiary for assets going directly to individual beneficiaries. If any of them die before you do, their funds go to the Trust as the backup beneficiary (rather than triggering probate).

All of the assets in the trust are controlled by the trustee (subject to your instructions), so that the trustee can pay the expenses, pay off the debts and pay the taxes for the estate, ensuring that no beneficiary is slighted and pays more than his or her share. The trustee will handle any claims or challenges to the trust estate or trust property, and the trustee will distribute the trust assets to the named beneficiaries according to the trust instructions.

Those instructions can include some controls for the distribution of assets to a minor child or young adult until they are old enough and mature enough to handle them.

Finally, the trust is not a public document. No one is entitled to receive information regarding the trust except for the trustee(s) and named beneficiaries without a court order. A trust keeps you affairs private.

If avoiding probate is the goal, a living trust is the best tool to achieve that goal. It is comprehensive and provides maximum control during life and after death. Setting up a trust and funding it does involve more effort, cost and attention than a Will, but it makes handling the estate after death much easier your loved ones.

Kevin G. Drendel
Drendel & Jansons Law Group
111 Flinn Street
Batavia, IL 60510
630-406-6179 fax
[email protected]