All too often, I hear from people who are interested in estate planning documents and want to “avoid probate.” Often, they don’t know what probate involves or why they want to avoid it.
Probate can be avoided by use of a revocable trust or “living trust” instead of a will. The problem is that most people will pay more for a lawyer to draft a trust than if the lawyer drafted a will (they are usually considerably more complicated). In addition, the lawyer usually drafts a will anyway, a “pour over” will that will deal with any assets that are not put in the name of the trust.
In fact, it can be quite complicated to try to remember to put every asset into the name of the trust. Imagine, for example, that you signed that trust and pour-over will 10 years ago. Now you are 80 years old and buying a car. You simply may not remember that the car needs to be put into the name of the “John Doe Revocable Trust.”
Another really good reason, besides cost and complexity, to go with a will instead of a revocable trust and pour-over will combination, is cutting off the claims of creditors. When a will is probated, a notice to creditors is published twice in a local newspaper. Creditors have four months after that first publication to come to court and file a claim.
If you die owning real property and your heirs want to sell the property, a title company will issue a policy to the new owner after that time for creditors to file a claim has expired. If there has been no probate process, the title company may make your heirs wait an entire year to sell the property.
It may be that in other jurisdictions the probate docket is crowded and the wait is long. Or there may be other reasons to avoid probate.
But here in Nashville, probate is not generally expensive or time consuming. Wills and the probate process are the system that has been developed over centuries for passing the assets of the deceased to his or her heirs. Before you decide against this system, make sure you have a good reason.