Many people consider creating a trust to avoid probate and to reduce the potential that their estate will be subject to taxes after death. Recently, Forbes looked at the question of whether it actually makes sense for many individuals and families to have a trust. The answer to whether you should create a trust or not is going to be specific to your situation, but you need to make the decision to create a trust before you become incapacitated.
While people are scared of the probate process, the reality is that probate does not have to be complicated and it may make sense to just create a simple will that will be probated rather than looking for complicated ways to allow your beneficiaries to avoid the process of probating a will after your death. An experienced probate attorney can provide assistance to individuals and families throughout the process of probating a will to make the process simpler and easier.
Should You Try to Avoid Probate?
Forbes points out that a trust can be expensive to create and that it can be costly to maintain. Before you decide to make a trust, you should consider:
- How much of your estate can actually be shielded from the probate process. Not all assets are subject to probate, even without the creation of a trust. Any property or assets owed with rights of survivorship are not going to be part of probate. Certain assets like life insurance that has a designated beneficiary are also not going to be a part of the probate process.
- Do you qualify for simplified probate? When a probate estate goes to a spouse or a domestic partner and the estate is not very large, simplified probate may be an option. When simplified probate is available to your beneficiaries, paying for a trust is usually not worth the money because the probate process will not be that long or that complex.
- Do you own real estate out of state? If you own real estate out of state, the property may need to go through the probate process in that other state depending upon how it is owned. This can add to the cost and complexity of probating a will since heirs and beneficiaries may have to go through the probate process in multiple courts and locations. Having a trust would allow beneficiaries of a will to avoid this challenge.
- Are you comfortable with the estate being public? When heirs or beneficiaries go through the probate process, the details of your financial life are made public as a part of the court process. With a trust, you can avoid probate and keep the details private.
- Do you have a child with special needs? If so, a trust may allow you to provide for your child without jeopardizing other benefits like Supplemental Security Income (SSI) or Medicaid coverage. Simply leaving money to a special needs child in a will can create complications not just in the probate process but also after the money is inherited and must be managed.
Think carefully about whether you want your estate to go through the probate process or whether you want to create an estate plan to avoid it.
Contact Bertolino LLP at 512-717-5432 to schedule a consultation with an Austin, TX probate lawyer today.