"DOES
HAVING A WILL AVOID PROBATE?"
By Robert P. Bergman, Attorney at Law
In an April,2010 Wall Street Journal article, a first vice president at Merrill Lynch Wealth Management was quoted as stating that a simple will would avoid the need for probate of the estate of someone when they died. Nothing could be further from the truth.
The fact is, if all you have is a Will or no Will at all, and your estate is of sufficient size or contains certain types of property, it will have to go through the Probate process in order to be passed on to your children or other heirs. In California, the threshold is in real estate and where the $20,000 or more, or owning any property that is $100,000 or more, including property that might be able to your estate when you die. This type of property could include life insurance, retirement plans or annuities where you survive the named beneficiary.
Probate is the court procedure for administering and distributing the estate of someone who has died, whether they have no Will or all they have is a Will. Every state in the United States has a Probate process. While some states have a much simpler process, California's Probate process is more complicated than many. Probate can be expensive, time consuming, and frustrating. Probate fees and costs in California often run up to 5% of the gross value, even on small estates, and can take 9 to 24 months.
Probate is a matter of public record. Once Probate is opened, anyone can examine your file, make a copy of your Will, and get a list of your family members and their addresses, their ages, and what they are receiving from your estate! Probate also gives upset or meddling heirs a low-cost opportunity to challenge your Will.
If you own real estate in other states, your family may have to open a Probate in each of those states. Probate can be totally avoided by creating a Living Trust during your lifetime and then transferring record title of your assets to that trust.
The only type of estate planning that can regularly and consistently avoid the Probate process is the revocable living trust. The revocable living trust, if properly prepared, signed, and funded with the assets of a person or couple, can completely avoid the Probate process in the vast majority of cases
Robert
P. Bergman is a
Bob gives regular free living trust seminars at his office in San Jose. Visit his website at www.lawbob.com where you can learn more, get on his mailing list, register for an upcoming seminar, schedule a consultation, and read other articles on estate planning topics that Bob has written. You can also reach him by e-mail at rpb@lawbob.com or telephone at 408-247-0444. All inquiries are confidential.
This article is intended to provide general information about estate planning ideas, concepts, and laws, and is not to be relied upon as rendering legal advice about your particular situation. No attorney-client relationship is created by this article. The laws concerning estate planning, wills, trusts, and estate taxes are very complex, often state-specific, and change on a regular basis. Consult with an experienced attorney before taking any action that would affect your personal or business matters.
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