The purpose of probate is not to make your beneficiaries miserable.
You are beginning the steps of creating an estate plan.
You are not quite sure what you need.
You have heard dreadful tales about probate.
Should you avoid it like the plague?
According to a recent The PV Democrat article titled “Avoiding probate - panacea or problem,” avoiding probate is not always what is best.
Why?
First, probate can be quite useful.
This court process was set up to help you distribute your assets after your death—whether to creditors or beneficiaries.
The goal is to protect your wishes as the decedent.
For your wishes to be followed in probate, you must have a valid will submitted to the court.
Still, some people try to avoid probate at all costs.
These people set up revocable living trusts.
Sounds perfect, right?
Wrong.
Trusts are not for everybody and can also have drawbacks.
What are they?
Legal Contests.
Individuals left out of a living trust can still initiate a contest.
What about if assets are improperly restricted in their use?
There could be a contest.
People will often claim undue influence if a living trust is created close to the death of the decedent.
Probate Protections.
When you create a will, you need two or more witnesses to affirm its validity.
These witnesses must sign the document.
Some states even require the will to be notarized to avoid having the witnesses later appear in court.
This is not always the case with a living trust.
A living trust can be created using just your signature and sometimes may not even require this step.
A will has required safeguards for assessing validity.
The Potential for Mistake and Misuse.
A living trust can be a tool for those who want to manipulate you or a loved one.
It would be easy to coerce a transfer without accountability through a living trust.
Even with these potential pitfalls, a living trust can be a useful estate planning tool.
Work with an experienced estate planning attorney to create a plan for your specific circumstances.
If any attorney recommends only one approach without a thorough understanding of your unique circumstances, then I have only one word of advice.
RUN!
So, how do you find an "experienced" estate planning attorney?
First, ask around. Friends, family and other professional advisors are trustworthy sources.
Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").
Third, either way, verify! Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.
How?
Two helpful online resources are just a mouse click away to assist with your due diligence: Avvo.com and Lawyers.com.
Check any Avvo ratings, client ratings/testimonials and attorney endorsements on Avvo.com and any "peer ratings" by judges/other attorneys and any client ratings/testimonials on Lawyers.com.
In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
Reference: (Pauls Valley OK) PV Democrat ((September 27, 2017) “Avoiding probate - panacea or problem”
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