So often, clients come into our office insisting that they need to “avoid probate.” They begin their search for an estate planning or probate attorney with this singular goal in mind. While there are many good reasons for trust-based planning and/or probate avoidance, discussed here are a few common conversations that sometimes lead clients back to probate and help them realize that in this part of the country, maybe probate isn’t so scary.
- You think it avoids administration and/or cost. It doesn’t. Clients sometimes believe that because there is no probate, there is no cost. Just because there is no probate court involved does not mean there is no work to do upon death. It simply means the court is not involved in the process. Upon the death of someone who has avoided probate by way of trust or beneficiary designation, if there are assets to pass title of, then there is still work to be done. Administration of a trust does avoid probate; however, the assets still have to move from the trust to the next named beneficiary. That next named beneficiary may be a new trust for someone else; creating a new trust requires obtaining tax identification numbers from the IRS, closing down existing bank accounts to move them to new trusts or other beneficiaries. It requires transferring title to vehicles, deeding properties, and handing over personal property. It may include registering weapons or rights to points in a timeshare. As with the acquisition of most things in life, this all comes with a price – a fee owed to the DMV for new car registration, a recording fee to tighten up the property records, and attorney fees to help you through the process. Additionally, more often than preferable, it seems families who did trust-based estate planning decades ago fail to administer their trusts correctly in the meantime. Trust planning done by a married couple seems, anecdotally, to be the biggest culprit. If one spouse of a married couple dies, the survivor typically has some work to do at that time within the trust. Too often, the surviving spouse skips this step. This can cause all kinds of trouble later on, with the IRS, with the beneficiaries of a trust instructed to be created upon the first death, and so on. In a trust-based estate plan where an unmarried individual intends to avoid probate, all of the person’s assets should be titled in the trust or name the trust as the beneficiary. Often, those trusts are revocable living trusts which either terminate or become irrevocable upon the death of the individual who would have created the trust (often called a settlor, grantor, or trustor). If the settlor did not get all of his or her assets into the trust, then a probate of the accompanying will (or an heirship and administration proceeding) is still required anyway to pass title to any assets that got left out. Ultimately, survivors should be sure they meet with a lawyer upon the death of anyone whose assets were left in trust to determine what steps need to be taken. In other states, probate requires notifying all intestate heirs; in some other states, lawyers can charge a percentage of the value of the estate to represent a client in a probate administration. Neither of those are issues in Texas. Admitting a properly drafted and executed will to probate in most Texas courts does not have to be extraordinarily costly or time-consuming in comparison to a trust administration that avoids probate, and it comes with some other potential benefits too.
- You need an attorney and/or a judge. In some circumstances, beneficiaries benefit from a judge’s involvement or oversight. For instance, maybe the estate has an aggressive creditor. In that case, the beneficiary(ies) may want the judge’s involvement to determine the status of that creditor and/or the collectability of the creditor’s claim. Maybe there is some ambiguity or family discord that led the decedent to create the will in the first place. Going through a probate administration means having a court involved. Having a judge at the helm to keep everyone in line, or attorneys in the case to communicate so the family doesn’t have to, is often part of the process when probating a will with complex family dynamics. Further, the probate process has statutory requirements like notice to the beneficiaries, public record of the will, and preparation of an inventory of assets, all of which encourage transparency in the process. Avoiding probate means there is no automatic notice to beneficiaries or inventories prepared for expecting beneficiaries. Sometimes, this increases suspicion of trustees, especially in already fragile relationships. Some families attempt to avoid probate by naming beneficiaries on all their assets, and then there is 1) no probate process or judge involved and 2) no formal appointment of a representative of the estate. With no representative appointed and no common place from which a representative can access funds or show authority over the estate, additional issues often arise. This looks like a mom who named one child as a joint owner or beneficiary on all her bank accounts who then expects another child to pay his or her share of mom’s last expenses. Without a will or a trust in place, expecting another child to chip in may be wishful thinking. Maybe that same child wants to cut a check to their sibling to make the inheritance equal for the child who wasn’t on the bank account – the giving child may have a gift tax return due to the IRS for making this distribution to their sibling(s) from their own funds they received from mom. The statutory probate procedures can mitigate discord, be a central place from which to pay expenses and distribute assets, and keep all beneficiaries and fiduciaries feeling safe and informed through the probate process.
- Testamentary Trusts or Disposition Different than Intestacy. Likely the most important reason not to avoid probate, is to effectuate the testator’s wishes in their will. Sometimes it is the survivors of the decedent who are looking to avoid probate. Imagine, after death, the surviving family will visit the lawyer’s office, and one of the first things the attorney will consider when determining what, if any, probate process is required will be the assets of the decedent. Sometimes, the only assets of the decedent have options as to how the title can be transferred. For example, if the decedent is a father who bought a home during his marriage and the only survivors are his spouse and children of the marriage, the surviving spouse could transfer title to themselves without the necessity of probating the will. The surviving spouse may think, “his will gives it to me anyway.” But what if that same decedent had trusts set up in his will for his spouse? What if those trusts were spendthrift or were created to avoid estate taxes? Not probating the will of the decedent in this scenario would get the house to the intended recipient, but would miss the other intentions the decedent had – like management of that house or estate tax avoidance- all because the survivors did not probate the will. In a case where the decedent executed a will-based plan, probating the will is the only way to create the testamentary trusts set up in the will. It is the only way to ensure that Rolex goes to the nephew it was intended for or that the daughter the decedent trusted ends up in charge of his estate. It is the only way to create the special needs trust the will sets out or to disinherit the estranged son as the will specifies. After death, a will is only as good as the judge’s blessing of it, and to obtain that blessing requires going through probate.
So, probate isn’t for everyone. It also isn’t not for everyone. Each client should understand the benefits a probate administration can bring and the consequences that come with avoiding probate in various ways and scenarios. With a little education, the idea of probate may be much less haunting.
ABOUT THE AUTHOR: Emily B. Taylor is a Shareholder at Rapp & Krock, PC in the Estate Planning, Wills, and Trusts group.
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