By Robert J. Green, Esq.
As courts in Idaho and across much of the country have significantly reduced access to formal court proceedings due to Coronavirus, avoiding unnecessary court matters has become a priority for many of my clients. When I first meet with clients they frequently tell me that they "need a trust to avoid probate". They less frequently know what probate is, or why they want to avoid it. To determine if you should be trying to avoid probate, you must first know a little about probate.
Probate is a court-controlled process that takes place after a person's death. When a person passes away, they usually leave both possessions and obligations behind. However, family members cannot typically just start "taking care" of those possessions and obligations on behalf of the deceased without permission from a judge. Instead, a judge usually needs to order that a particular person has the authority to take care of duties related to bills, finances, taxes, and making sure possessions are given to those who stand to inherit them. The person taking on that role is called a Personal Representative or an Executor, and he or she has the authority to deal with these matters because a judge has given him or her that authority as part of the probate process. A person's Last Will and Testament will help guide the judge and the personal representative as to how to carry out the probate.
Can't all of that court involvement be avoided? It is certainly true that probate can be (but is not always) expensive, complex, and time consuming. When this is true, creating arrangements such as Living Trusts, so that probate may be avoided, could be very appropriate. A well-designed Living Trust is meant to accomplish the same outcomes one gets from the probate process without having to involve the court system. Limited court services during the COVID-19 pandemic can create additional delays in a court-controlled probate process that already takes months in every case and can take years in some cases. It is easy to understand why so many of my clients are currently concerned with planning designed to avoid probate.
While there is not a one-size-fits-all answer to whether a person should be trying to avoid probate, I suggest using these questions to get some specific advice from an estate planning attorney:
- Do you want a private process?
Generally, all documents filed in a probate matter are public records and are available to anyone to read or copy. This includes the will and any lists of final distributions to beneficiaries. Many of my own clients do not like the lack of privacy involved with probate, and prefer to find a way to keep the entire matter private and within the family.
- How long will probate likely take?
It is generally presumed that the probate process takes a long time and that property will be tied up for the duration. While multi-year probates are less likely, most probates do last 9 to 12 months (in Kootenai County, Idaho). While lengthy probates are not always the norm, many factors will impact the length of a probate matter and some of those factors are out of our control - like delays in court action due to Coronavirus.
- Will avoiding probate be easier on my loved ones?
My clients often want to leave their families with the least complicated situation possible. For some families, avoiding probate could make things less complex for those the deceased leaves behind.
But how do you get your legal documents in place or updated with most law offices closed to in-person meetings? Some law firms, like mine, are currently offering free telephonic consultations concerning creating or reviewing estate planning documents. Kootenai Law Group has put in place processes to complete estate planning for people while minimizing person-to person contact. You can get this important planning done now, even as COVID-19 requires that we socially distance.
Robert J. Green is an Elder Law, Estate & Business Planning Attorney and the owner of Kootenai Law Group, PLLC in Coeur d'Alene. If you have questions about probate, estate planning, wills, trusts, powers of attorney, guardianships, Medicaid planning, or business planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.