ASKED & ANSWERED
Q: My father had a will, so does that mean I can skip the probate process?
A: The answer to this question might have to be modified depending upon the state you are in. Therefore, seek local counsel. However, a will, in and of itself, does not necessarily mean that you avoid probate. In fact, there are statutes that require that a will be "admitted to probate" within a certain period of time after a person has been deceased. The existence or absence of a will is not necessarily the determining factor. When a person dies with assets, property and/or debts, probate is the process that is generally used to address how those assets, property and debts will be handled. A will, however, when drafted appropriately can be used as a roadmap for how the decedent wanted such property distributed and debts paid. And, unless court supervision is required (again, depending on your state or the wording of the will) a will can greatly streamline the probate process.
Q: Does having a trust eliminate the need for probate?
A: Creating a trust is certainly a good first step to avoiding the probate process, but the existence of a trust itself cannot guarantee that probate will be completely avoided. Again, the question that has to be asked is whether or not the person who died had assets, property and or debts that could be deemed part of that person's estate at the time of their death. If all of the person's assets and property were held in a properly drafted and legally recognized trust, which also provided direction for the payment of debts, there might be no need to go through the judicial administration process (Probate). It is not uncommon, however, for a person to pass away owning property that had not yet been transferred to a trust created when that person was living. A pour-over will, if properly crafted, can often be used to "capture" this leftover property, by having such property transferred to the trust. Some jurisdictions require that notice be given of the existence of a trust that circumvents the probate process.