Reasons To Have A Living Will And A Will

By Joseph Devine

Probate is the process by which claims on the estate - of a deceased person are resolved, and the property and assets of the decedent distributed. In most cases, probate involves the examination and execution of the decedent's will, if available. Probate proceedings are unique among legal procedures in that they are very rarely contested when a valid will is present. Despite this fact, probate can be very expensive and time-consuming, usually taking place over a period of several months.

Because probate can be such a hassle for the beneficiaries of a decedent's will, many people have turned to living trusts in order to avoid the whole probate process altogether. In a concise statement, a trust is an arrangement in which a settlor places property in trust, to be held by a trustee for a beneficiary.

For example, if Mr. Smith intends to leave his house to his daughter Jane, but wants spare her the headache of going through probate, he may choose to put his house in trust instead of dealing with it in his will. While drawing up his Declaration of Trust, Mr. Smith names himself as trustee, allowing him to retain legal ownership of his house. He further names his wife, Mrs. Smith, as the successor trustee. Not long after, Mr. Smith dies in a tragic car accident. When probate begins, Mrs. Smith, who has become the trustee after Mr. Smith's death, presents the court with documents showing the existence of the trust, and therefore stops the house from ever entering probate proceedings. She can then transfer ownership of the house to Jane through some simple paperwork. The whole process usually takes no longer than a few weeks, and is comparatively painless.

The question many people ask, then, is: "Why get a will, when I can do the same thing with a living trust while avoiding probate?" The answer is that a will can serve as a useful safety net for property that a person either forgets or does not have time to place in trust. Using the previous example, suppose that, shortly before his death, Mr. Smith purchased a plot of land which he also intends for Jane to inherit. Unfortunately, Mr. Smith did not place the land in trust before his death. If he had died intestate - i.e., without a will, that piece of land would be automatically distributed according to state probate law, which may or may not be in line with Mr. Smith's wishes. In other words, while a trust is a very effective way to avoid probate, the flexibility and wide reach of a will allows a person to account for the distribution of all their assets - even ones that are not placed in trust.

If you have questions regarding effective estate planning strategies, call 512-472-2431 to speak with an Austin probate lawyer from the Slater & Kennon law firm.

Joseph Devine

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