Creating a Living Will Can Help Prevent Probate

will and trust

When you think about your estate plan, have you considered how you can ensure your beneficiaries don’t have to go through the probate process after your death? When our estate planning advisory initially sits down with estate planning clients, they typically want to know about setting up a Will and only setting up a Will.

Unfortunately, a Will doesn’t keep individuals from going to probate court to contest your wishes. So, how do you help your beneficiaries avoid probate court? The experts at Trust Company of Oklahoma suggest creating a living will to help prevent probate.

What does probate mean?

According to Investopedia, probate is the term for a legal process in which a will is reviewed to determine whether it is valid and authentic. The term probate court refers to a specialized court that deals with the property and debts a person has who died. In probate court, a judge works to ensure that the deceased persons’ creditors are paid and that any and all remaining assets are appropriately distributed to the remaining beneficiaries.

Can a will be contested?

Unfortunately, a Will can be contested, causing its validity to be questioned within a probate court. In Oklahoma, a Will can be challenged for these reasons:

  • Unsound mind, lucidity, or mental state of the testator
  • Undue influence, duress, or coercion exerted upon testator
  • Lies
  • Fraud
  • Elder Scams

Choosing to contest a Will is an expensive process for both the contester and the estate and can take months or even years to complete. Mind you, the longer the process takes, the more it will cost the estate.

Going to probate court requires the deceased person’s financial situation to become a public record—the record including the persons’ debts and the extent of their assets.

What is involved within the probate process?

Once a will is contested, the probate process begins with someone filing a petition for probate with the probate court. Typically speaking, Wills are contested by relatives or someone designated within the Will itself.

After the petition is filed, the court will issue an order appointing someone to represent the estate, such as the Wills executor. We suggest this person hires a probate lawyer to assist them in handling the administration of the deceased person’s estate. The tasks the executor and probate lawyer must handle are vast. They involve handling such things as:

  • Opening an estate bank account.
  • Arrange for the placement of legal notices to be announced in a newspaper.
  • Determine any and all claims made by creditors claiming that the deceased owes them money and following up with these individuals by paying them.
  • Providing notices to beneficiaries.
  • Selling any assets that need to be sold.
  • Handling/filing all court documents related to the probated Will.
  • Finalizing and submitting the deceased individual’s final tax return.
  • Lastly, the executor must transfer assets to the remaining beneficiaries.

 How can you avoid probate?

There is a common misconception out there that says having a Will means that your heirs will not have to enter probate, but unfortunately, a Will alone will not stop the possibility of someone contesting your Will.

If you truly want to avoid probate, the best way to do this may to do this is through a Living Will, otherwise known as a Living Trust. As we previously discussed in Estate Planning 101, Part 1, we defined a Living Will is a document that formally expresses your with to forgo extraordinary medical treatment when you become terminally ill. Its purpose is the be an addendum or alternate to the Will itself.

Though a Living Will helps to define situations in which you need your medical care decided for, it can also place your assets and property “in a trust” that is then overseen by a trustee. The decision to do this is the benefit it can have for your beneficiaries as it helps you avoid probate because your properties and assets are already distributed within it. The key in creating a Living Will that helps reduce the likelihood of your beneficiaries going to probate court is titling your assets in the name of your trust. Should you forget to complete this critical step, your Living Trust holds no grounds in a probate court. A prominent example of someone who forgot to complete this step is Michael Jackson. At the time of his death, he had created a Will and Living Trust but never titled his 236 million in assets the trust itself, leading his beneficiaries to fight over his estate in a probate court.

The best piece of advice we have for you at Trust Company of Oklahoma when it comes to creating a Living Will only applies to individuals who have left property to a minor. If that is you, we cannot stress enough how imperative it is to list a successor trustee. A successor Trustee has the legal ability to control property that a minor is to inherit when they eventually come of age.

It is then simple to decide that a living trust can help your beneficiaries avoid court charges and other associated fees at all costs.

No matter what route you take when it comes to your estate plan, it is essential to have a well-strategized plan in place. After all, you want to help your beneficiaries avoid the costs associated with probate. If so, contact the experts at Trust Company of Oklahoma.