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Ways to Avoid
Probate
Wills
Many people believe that a will allows their estate to avoid probate. Please
understand that a will does not mean you can avoid probate. Instead, under most
circumstances a will must undergo probate so that the court can determine
whether the will is valid, i.e., that it reflects your true and final wishes for
the distribution of your estate and that you correctly signed and authenticated
the will. If you have only one will and its terms are not unusual, and no one
challenges the will, the probate process can proceed without too much
difficulty, although the process is still subject to the time requirements
imposed by statute. Competing wills, large gifts to strangers, and people
challenging your will can complicate and lengthen the probate process even
more.
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Trusts
A trust can help your estate avoid probate. Many estate plans contain a trust
and a will, and the will must still be probated. The advantage to having the
trust is that, generally, trusts do not require judicial oversight to administer
and they need not be proven valid in court, unlike wills. Also, after a will
has been successfully probated, it becomes part of the public record.
Since
trusts are not probated, a trust does not become public. Due to the lack of
required judicial oversight, the process of distributing your property becomes
much easier. Instead of the court overseeing the distribution, the trust
document governs the distribution, and the trustee has the responsibility to
ensure that the trust document is followed.
If the trustee fails to follow the
terms of the trust, then a trust beneficiary may sue the trustee to force him to
follow the trust terms. |
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Trusts can take a great variety of forms and may perform different functions.
Despite the abundance of “do-it-yourself” trusts available, your best option is
to consult an attorney familiar with estate planning and taxation issues.
The
Burton Law Firm can help you decide which estate planning tools best suit your
needs and how to implement them.
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