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My Will Avoids Probate… Or Does It?

Let me let you in on a little secret: your Will does not avoid probate. In fact, reliance on a Will is a one-way ticket to the Probate Court.

Your Will’s job is to tell the Probate Court who you want your assets to go to at your passing and who you want to be in charge of distributing your assets to those listed beneficiaries. But if you notice, I said, “tell the Probate Court,” which means the Court must be involved in distributing those assets. With the Court involved, you need to worry about the time, expense and publicity of the probate process. Basically, probate is expensive, takes a long time, and opens your beneficiaries up to identity theft.

Don’t get me wrong, everyone needs a Will, but it shouldn’t be the only legal document you rely on or the only “Probate Avoidance” strategy you rely on. Wills are better than nothing. With nothing, the Court uses a statute to determine where your assets go at your death.

With almost every client I meet, we are creating some sort of Will. It may be a Last Will and Testament or Pour Over Will, which is dependent on whether or not a trust is needed to avoid probate.

A lot of people believe that a trust is only necessary if you have a lot of money and you need to worry about taxes. This isn’t necessarily the case anymore.

There are multiple reasons to have a revocable living trust:

  1. For probate avoidance when you have multiple different accounts or types of assets, which makes Transfer on Death or Payable on Death designations difficult

  2. You have beneficiaries that are bad with money or at picking spouses

  3. You have special needs beneficiaries

  4. You have minor children/beneficiaries

  5. You have an estate tax issue. Another reason to have a trust is if you want to protect assets from a nursing home, but that requires a different type of trust.

Please contact Durnell Maier Law at 937-507-9004 to schedule a free consultation to determine the best way for you to avoid probate.

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