Probate and Settlement of Trusts

Probate

The purpose of a probate is to appoint someone to settle the affairs of a decedent. It involves getting a personal representative appointed, identifying and paying the debts of the estate, securing the assets of the estate, filing the final tax return, making distribution of the assets to the heirs and more.

A probate is court proceeding. It is used to settle a decedent’s estate where there is a will involved and even where the decedent failed to draft a will. If the estate is solvent (more assets than debt), it can even be settled by using non intervention powers where the court is hardly involved at all in the process to reduce the expense of a probate. With non intervention powers, the court is involved when starting the probate and often has no more involvement. Still the court is available to give the personal representative instructions and resolve any controversies and disputes between the personal representative, heirs, creditors and other matters.

In some cases, a decedent’s estate can be settled by an informal probate process. If the decedent did not own real estate, has a solvent estate, has probate assets under $100,000, the heirs can often settle the estate informally.

The benefit of a formal probate is closure. Settling a decedent’s estate can sometimes be simple. However, it is often complex because there is not a good estate plan in place and/or the decedent just had a different way of managing his or her life and is no longer around to tell us what their intent was. I tell clients that settling a decedent’s estate is like running a small business on top of your normal life. Creditor mail comes in, bills need to be paid, residential matters need to be resolved by either cleaning up the apartment and handing over the keys or selling the home, taxes need to be paid and more. The person responsible for settling an estate needs the authority to do so and protection from people who might object. A probate gives the personal representative the best authority to settle the estate and protection in doing so.

Trust settlement.

Many people have revocable trusts that can be used to avoid probate entirely if they have been properly funded. The Trust Estate is settled by the successor trustee who takes over after the decedent passes away. The role of the successor trustee is almost identical to that of the personal representative. The big difference is that there is usually no court proceeding.

The settlement of a revocable trust is usually a little easier and economical than a probate. That is one of the reasons that revocable trusts are such a popular estate planning tool. The added cost of a revocable trust centered estate plan over a will centered plan is often saved in the settlement process. However, the real cost of settling an estate does not revolve around a revocable trust versus a will. It revolves around the quality of the estate plan, the ability of the person who is settling the estate, battling siblings and more.

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