Is A Probate Attorney Still Necessary If There's A Living Trust?

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Is A Probate Attorney Still Necessary If There's A Living Trust?

19 October 2015
 Categories: , Blog

Many people hear that a living trust can make it so there's no need for a probate attorney after their death. While a living trust can eliminate many inconsistencies and problems that can occur with a will, there's no guarantee that you won't still need a probate attorney. Here's a few points to consider.

Why Would You Want to Avoid the Probate Process?

Probating an estate can become a complicated, time consuming, and painful process. A probate attorney isn't technically required for the process, but it's always beneficial to use one.

Depending on the attorney and the requirements of the estate, probate can become pricey. If you don't leave an airtight will, then the process can take even longer than it needs to. For example,

  • If there's not enough left to pay debts
  • If you leave property to someone who isn't old enough to have it
  • If you leave behind contracts in dispute
  • If someone else has a viable claim to something
  • If the wording isn't exact and unambiguous

These are all the kinds of things that can make the probate process take far longer than it should. That length of time will also turn into cost in the form of attorney fees and probate fees.

This is the kind of thing people would like to avoid. You don't want to leave your loved ones scrambling and struggling just to get your estate in order after your passing. That's why a living trust can make more sense.

Why You Should Consider a Living Trust

There are different types of living trusts, but the important aspect is that they're trusts you create while still alive. Since the probate process often requires a trustee to gather all of your assets into one place, a living trust cuts that part out.

Instead, whoever is the successor trustee after your passing can transfer assets to the beneficiaries that you chose while alive. After the successor trustee finishes, the trust is no longer viable. Often, this process does not require probate court or attorneys. It can swiftly bypass the probate process.

Is a Probate Attorney Still Necessary?

It may seem as if a living trust can solve all the probate problems, but that's not the case. Even with a living trust, there's a chance you  missed some assets or debts. Even with a living trust, you should have a will. Your will can serve as a backup or as auxiliary to your living trust.

In all these cases, the probate process can still kick in. When that happens, it's best to have a probate attorney to help separate those assets that fall outside of the purview of the trust. In addition, the laws regarding probate vary from state to state.

So even with a living trust, your loved ones will still have to rely on the expertise of a probate attorney to make sure all assets outside of the trust will go to where they're supposed to go. However, a living trust can definitely help shorten the probate process for everybody involved.