When someone passes away, their assets are distributed to family members. In an ideal situation, this process is done peacefully as an act of love and remembrance – but, when the deceased person, or decedent, has not taken the proper steps of estate planning, it can become complicated and burdensome for the survivors. Beck Estate Planning & Elder Law is an experienced probate administration firm in St. Charles, servicing the greater St. Louis region. Founded in 1974, the firm has decades of experience helping families through the probate process.
The Distribution of Estate Assets
In general, an estate is either distributed in Probate or by a Living Trust. For smaller estates, probate court may not be required, depending on the laws of the decedent’s state of residence at the time of death. It is also important to remember that many assets with a Pay on Death (POD) or beneficiary designation do not pass through probate court, and typically include: life insurance proceeds, funds in an IRA or 401(k), funds in a POD bank account and real estate or vehicles held with a Transfer on Death (TOD) deed or title document, among others.
What is Probate?
Probate is a court-supervised legal process that dictates how an inheritance is distributed to the heirs of a decedent. The process can be costly and time-consuming, and because probate court proceedings are a matter of public record, privacy is often sacrificed. The following are three types of probate:
- Death Probate
If the decedent prepared a living will, the named executor will appear before a judge to be formally appointed and to request that the will be admitted to record. The executor is then granted the authority to distribute the decedent’s probate assets. If a living will was not prepared, the state will provide a list of people who are eligible to serve as the estate’s executor before assets can be distributed. If any inheritances are contested, the process can easily take more than a year to be resolved in probate court.
- Living Probate and Conservatorship
This type of probate is encountered by someone who is alive, but is disabled, impaired or otherwise unable to manage his or her own finances. Someone must prove to the court’s satisfaction that the person in question is legally incompetent. Then, a conservator is appointed by the court to handle all of the person’s affairs. A conservator must make frequent and detailed reports to the court, and may have to post a bond with the court.
- Living Probate and Power of Attorney
The main difference between power of attorney and a conservatorship is that power of attorney grants another person the ability to manage a person’s financial assets only, whereas a conservator has the ability to manage both the person’s estate and their well-being – including health care and living decisions. Under common law, power of attorney is revocable if its grantor becomes disabled unless structured as a durable power of attorney, which continues until the grantor’s death.
Setting up a trust is one way to avoid probate. It is a fiduciary entity that names a third party (trust) or parties (trustees) to carry out a person’s wishes for their property and other assets after his or her death. When assets have been properly transferred to a revocable living trust, probate is avoided at death as the successor trustee(s), in effect, replace the probate court regarding the distribution of the decedent’s property.
Use of a living trust provides for continuity in the management of assets, and avoids probate in all states in which the decedent may have owned assets. In addition, avoiding probate by use of the revocable living trust helps retain a large degree of privacy for the deceased and their family, as property in a living trust is not a matter of public record. By establishing a living trust with an estate planning lawyer, you – rather than the court – choose who will manage your financial affairs.
Schedule a Consultation
The first step in setting up a trust to avoid probate is to schedule a free consultation with an experienced estate planning attorney. At Beck Estate Planning & Elder Law in St. Charles, Missouri, our knowledgeable attorneys and legal staff are constantly working to help clients completely understand their options and make educated decisions that work for their unique situation. Contact our office today and let us provide you with peace of mind.