Does a will avoid probate?

No. A will disposes of assets but it does not avoid probate. Some estates are subject to probate and some are not. It depends mostly on the assets owned by the decedent. If you own real estate of any value or financial accounts over the statutory amount your estate will go through probate regardless of whether or not you have a will.

What is probate and can it be avoided?

Probate is a court process where after death the will is filed with the court and presented to a judge or commissioner for approval and authority to administer the estate. An executor has no authority until a court order is entered. The process then requires publication, notices, inventory and/or appraisement, legal declarations regarding administration, in some cases bond, and other statutory requirements. Probate allows creditors and heirs rights regarding the executor’s actions, validity of the will and distribution of the estate. If you have assets in other states, ancillary probates are often required, running up costs.
In most cases probate may be avoided fairly easily with proper estate planning.

Should I try to avoid probate?

It is a personal decision depending very much on individual situations. I find most people want to avoid it to save time, money and inconvenience. It is a decision which in some cases should be discussed with the person you appoint as your executor. It usually costs a little more to set up your estate to avoid probate, but it is far less than the cost of probate in the long run. Probate in Washington is not nearly as bad as some states. No, the attorney’s don’t take a percentage. No, the state doesn’t take a percentage.

Which controls, a payable on death beneficiary or a will?

In most cases a payable on death beneficiary takes precedent over the will designation. However, to avoid litigation, clarity and consistency are critical in planning.

Why should I avoid “Form” Wills & Trusts?

I’ve seen many very bad and defective form trusts and wills over the years. Usually they end up costing the family more in legal fees and time because of their ambiguous or unwanted provisions.

True Example of Bad Will Form:

June had a form-will prepared where she basically “filled in the blanks.” The will cut out her children and attempted to leave everything to a friend, Nancy and others.

I scrutinized the will and found two of the provisions if taken literally and formally were somewhat inconsistent and ambiguous. It showed confusion around June’s intent and the position of the “executor” vs. “beneficiary.”

Rather than challenge the will, I petitioned the court to probate the estate with an adjudication that June died without a valid will forcing Nancy to try to probate the will. The court appointed my client, June’s son and the will was never admitted to probate. I still don’t know what June actually wanted, but we had to use other evidence and the statutes to try to piece it together.

True Example Revocable Living Trust Seminar :

Many times over the years I’ve reviewed Revocable Living Trusts where a couple went to a seminar and for a certain sum (about the same that they’d pay to a legitimate attorney) they emerge with a nice looking incomplete package of docs.

Currently I’m working on one such estate where some of Rosa’s Revocable Living Trust documents state she has only one child (she has three) and her second husband has no children (he had four). Obviously a whole host of problems resulted from bad drafting and lack of review. But more harmful is Rosa’s trust provides for mandatory divisions of the estate at her husbands death which are difficult for her to manage, expensive and completely unnecessary given the size of her estate.

Her kids are spending a lot time and money trying to undo bad documents. Of course it isn’t easy and might be in the long run too expensive so Rosa may be stuck with a division of an estate which she worked all of her life to grow. Not to mention she is completely restricted in her use of her own assets

Revocable Living Trust v. Last Will and Testament; What is the Difference?

Revocable living trusts have become a popular alternative to the traditional Washington will as a way to pass property at death.

A revocable living trust is an arrangement for management and distribution of property. Like a will, the trust is “revocable,” meaning that it may be modified or eliminated it at any time. These trusts are established by a written agreement or declaration which appoints a “trustee” to administer the property, and which gives detailed instructions on how the property is to be managed and eventually distributed. To avoid probate the trustor should transfer substantially all property to the trustee. A revocable living trust agreement or declaration is usually longer and somewhat more complicated than a simple will.

The benefit to a trust is that it remains private in most situations, it is generally more difficult to challenge, and it is easier for the administrator to step into the shoes of the decedent without going through a court process. It is also much cheaper to administer a living trust in most situations than to go through a probate. The drawback to a trust is it is sometimes more expensive to set up initially, the trustor needs to transfer all probate assets into the trust after it is signed and occasionally it requires a new tax identification number.

A will disposes of property and assets, however, if an estate is over $100,000 in value or consists of real estate (a home, vacant land, mobile home, real property) the will generally has no effect until it is admitted to probate. Probate is a court process where the executor petitions the court for authority to administer the estate (pay all expenses, liquidate assets, distribute assets and close the estate).

Through a Revocable Living Trust, the Trustor may establish a Credit Shelter Trust, Educational Trust, Trust for Minors and other type of Trust.

Is It Hard to Change or Revoke a Will?

No. A will is effective only at death and may be changed or revoked at any time before death. A will should be revised to reflect any changes in circumstances, personal choices or resources. Changes are often made by a simple document called a codicil (a supplement to a will), or by redrafting the will. An attorney should be consulted when making changes to ensure that changes are legal and properly made.

How Often Should I Update My Will?

A will should be reviewed and updated as conditions and circumstances change. For example, changes may be necessary when:

  • • The family changes as a result of a birth, adoption, marriage, divorce or death;
  • • Substantial changes occur in the amount or kind of property owned;
  • • Tax laws change;
  • • Residence changes from one state to another;The designated executor, guardian or trustee can no longer serve; or
  • • You decide—for any reason—to change the distribution of your estate.

How Long Does a Will Last?

A will is valid until legally revoked or changed, and becomes final or effective upon its maker’s death. In the event of a divorce, a will automatically excludes the former spouse unless it expressly states otherwise. (Complications could result, however, if no property settlement agreement of the divorce exists.) Periodic reviews are important to make sure the will conforms with changing laws—as well as the will-maker’s intentions

How Can I Keep My Will Safe?

The signed original document should be kept in a safe place. As with all vital papers, this document should be stored where it is protected (such as a bank’s safe deposit vault), yet readily accessible when needed. In Washington, the safe deposit box of the deceased is not sealed, so someone who has access to the box can get the will. Arrangements should be made for the will to be immediately available to the decedent’s executor.

A copy of the will that notes the location of the original document, and a letter of instruction that contains numbers for bank accounts, insurance policies, credit cards or other financial details, should also be prepared. The letter may also contain instructions regarding burial, cremation or anatomical gifts, and should be given to the executor or will-maker’s attorney. Because this letter may function as a plan for handling important estate matters, it should be as complete as possible.

What changes have occurred recently which may affect my estate?
Some changes are as follows:

  • • Washington’s taxation and Federal tax on estates has substantially changed over the years and more changes are set to occur.
  • • More assets are now subject to probate such as Mobile homes which were once consider personal property.
  • • TEDRA, (Trust and Estate Dispute Resolution Act) provides an avenue for family members and heirs to resolve disputes without resorting to litigation.
  • • HIPPA, (Health Insurance Portability and Accountability Act), now enacted requires certain waivers by individuals to allow family members access to medical information. Therefore, most Powers of Attorneys should include language waiving the privacy.
  • • Advanced Health Care Directives and Powers of Attorneys should be reviewed every three to five years to ensure they specifically meet your desires with regards to artificial life support in certain medical situations, medical and financial decisions.
  • • Wills, Trusts and Powers of Attorneys should also be reviewed every three to five years.