1. What is Probate?
  2. How can I avoid probate?
  3. Why is it better to use a trust to avoid probate rather than a survivorship feature?
  4. What are the drawbacks to probate?
  5. I have a Will, isnít that enough?

What is Probate?

Probate is a court proceeding in the county of residence of the decedent at the time of death.  It is the legal process by which assets are properly passed from a decedent to the surviving heirs. Assets solely titled in the name of the decedent must be administered by the probate court. Jointly owned assets, assets transferred to a Trust and assets with a beneficiary designation are not subject to probate administration. The probate court administers and supervises the payment of claims, taxes and expenses of the estate and settles disputes among creditors and/or heirs.

How can I avoid probate?

Probate can be avoided with jointly owned assets or by using a survivorship designation to title your assets. Some assets, such as life insurance and retirement funds ( IRAs, 401ks, etc.), allow for a beneficiary designation, that is, naming a beneficiary in the event of the owner’s death.  However, a revocable trust is perhaps the best way to avoid probate.

Why is it better to use a trust to avoid probate rather than a survivorship feature?

A trust is better than some of the other survivorship designations for several reasons.

            (a)  It is generally unwise to create a joint tenancy with anyone other than your spouse. Assets jointly owned with children are subject to the claims of their creditors (see paragraph 8 below). Even if all goes well, jointly owned assets do not receive a stepped up basis at death. The joint owner assumes the decedent’s cost basis and when sold, any profit on an asset such as real estate or stock would be subject to capital gains tax. 

            (b)  A trust allows you greater control of your assets beyond the grave to ensure that expenses are bourn equally by all heirs and by allowing the grantor to tailor the distributions, including restrictions when warranted, such as enabling students to qualify for scholarships, loans or grants and for disabled heirs to augment their standard of living without losing public assistance.

What are the drawbacks to probate?

The major drawbacks of probate are:

            (a)  Probate is time consuming. A probate estate is usually open a minimum of 6 months and often lasts a year or more;

            (b)  Probate is costly. Attorney’s fees set by statute in Missouri and determined as ‘reasonable’ in Kansas are generally in the range of 3% of the value of the estate. In addition, the estate must pay court costs, publication fees and in many cases the cost of a probate bond.

            (c)  Probate is public. The records of the probate court are available to anyone who wants to go to the courthouse and review them. This includes the decedent’s Will, the complete inventory of the decedent’s assets and the names and addresses of all heirs

I have a Will, isnít that enough?

Although a Will is probably the most common estate planning tool, it does not avoid probate. A Will is a legal document that states whom is to receive your property when you die.  Although it accomplishes this task, you will be faced with probate and attorney’s fees to administer the estate.