Probate refers to the process whereby a state court determines the validity of a Will and oversees the executor’s actions in carrying out the terms of that Will. This includes distribution of any assets that were in the deceased person’s sole name and not automatically transferred to another person upon death.
Many estate planning attorneys advise their clients to avoid probate by transferring their assets into a Living Trust during their lifetimes. In this manner, there may be no probate assets in the person’s estate, as the trust is governed by a separate agreement.
But for many estates, the probate process is not terribly laborious. Many small estates qualify for an expedited process that only requires minimal paperwork. There may not be much cost savings either, as probate fees are often just a few hundred dollars for small estates, while trusts can cost several thousand dollars in legal fees to establish and administer. A trust will also not reduce any potential estate tax liability.
That is not to say there are not circumstances where a Living Trust is your best option. You must consult with an experienced estate planning attorney who understands the relative benefits and costs of probate-versus-trusts and who can provide advice regarding your needs.
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