If you have looked into the subject of estate planning in a casual way, you have probably heard the concept of probate mentioned. This is a legal process that can enter the picture when assets are transferred after someone dies. You may wonder why court involvement would be appropriate, and we will provide some insight in this post.
Supervision of Estate Administration
Let’s say that you use a last will to state your final wishes with regard to the distribution of your monetary assets. In the document, you would name an executor to handle the estate administration tasks.
Most people are aware of this arrangement, and some would assume that the executor could just follow the instructions and distribute assets shortly after the death of the testator. In reality, under the laws of the state of Ohio, the executor would not be allowed to act independently.
The will would be admitted to probate, and the court would provide supervision during the administration process. One responsibility of the probate court is to determine the validity of the will. If anyone wanted to present an estate challenge, they could step forward during probate.
In the big picture, this is a necessary safeguard. Though it is quite rare, sometimes a challenge will be warranted because there was something amiss. For example, a person that is not of sound mind could be coerced to sign a will that was presented by a self-serving individual with nefarious intent.
On the other side of the coin, people with scurrilous claims have an opportunity to make them. This can slow down an already time-consuming process. Probate will typically take about eight months to a year, even if there are no complications. The rightful heirs to an estate cannot receive their inheritances while the estate is being probated by the court.
Another function of the probate process is to give creditors the opportunity to come forward seeking satisfaction from the estate before the assets are distributed.
We should point out the fact that probate can be very important when someone dies without a will. Under these circumstances, the court would appoint a personal representative to act as the administrator. Court involvement would be quite necessary under these circumstances.
Though probate does serve a purpose, the time consumption can be a problem for many people. Plus, there are significant expenses that accumulate during probate. Another probate drawback is the loss of privacy, because probate records are available to the general public.
If you would like to construct your estate in a way that avoids probate, you could utilize a revocable living trust as the centerpiece of your estate plan. You would not have to worry about losing control while you are living, because you could act as the trustee and the beneficiary throughout your life.
After your death, the trustee would be able to distribute assets to the beneficiaries in accordance with your wishes as stated in the trust declaration. These distributions would not be subject to probate.
In addition to the avoidance of probate, there are other significant benefits to be gained if you use a living trust. One of them is the ability to add a spendthrift provision that would protect the principal from the beneficiary’s creditors.
You would also have the ability to instruct the trustee to distribute limited assets incrementally over an extended period of time. This is one of the benefits, but there are many others.
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