You have most likely heard someone say that you should avoid probate. I often meet with clients who have experienced the probate of the property of their parents or some other relative. They are adamant that they want to spare their children the difficulties they themselves encountered.

The problems most frequently mentioned are the time probate takes and the costs involved. It is not unusual for a probate estate to remain open for a year or more. The expenses for attorneys fees, court costs and other fees can easily take 3% or more of the estate’s value. For example, $200,000.00 of assets in the probate estate could translate into $6,000.00 in fees, depending on the circumstances.

A living trust is one of the most efficient and effective ways to avoid probate. A will alone does not avoid probate. A properly-drafted revocable living trust provides several advantages. The property held in your trust does not require probate. After you die, the property in the trust can be distributed relatively easily to the people you have been named in the trust to receive it. Typically, the distribution from the trust is much quicker and less expensive than a probate process.

Another advantage of a trust is that you can name someone who can manage the trust if you become incapacitated either temporarily by illness or accident, or over a longer term by dementia or other cause. This attribute of a trust can eliminate the need for a court-ordered guardianship to appoint someone to pay for the things you need and transact your other business during the period of your incapacity.

An attorney can draft a living trust so that you can revoke it or amend it at any time. That feature gives the trust significant flexibility allowing you to modify it if your circumstances change. Since each person’s situation is unique, the best course of action is to consult an attorney who can address your specific circumstances and objectives.

Written by Gregory F. Quinn, Attorney with Quinn Estate & Elder Law