Revocable Living Trust Instead Of Probate

Copyright (c) 2014 Mark Shapiro

Some people think that if they have their will, when they pass away, everything will go instantly and automatically to the kids (or their spouse, or... ) as is in their will, period. It is not that simple.

This is one of my many judgment articles: I'm the Judgment Broker, not a lawyer. This article is my opinion based on my experiences, please hire an attorney if you require legal advice.

When someone passes on, without or with a will, their former assets must usually go through a probate court before being passed on to the individual(s) mentioned in their will. Probate court is where you prove to the court, the ownership status of the dead person's assets.

Just because Dad's will states that Cindy gets the Jaguar and Frank gets the house, does not mean that the day after Dad passes away, Cindy and Frank get them immediately, or any other assets listed inside of Dad's written will.

First, it needs to get proved in probate court that Dad actually was the sole owner of both the Jaguar and the house, clear and free. The actual ownership checking is done by an Executor (as named in the will) or the Administrator (as appointed by the court when there is no written will).

The administrator or executor, files documents with the probate court identifying the legal title, and whether or not all loans and/or liens have been cleared on all the possessions listed. After it is proved in probate court that the Dad solely owned all the possessions mentioned in his will, then the court reviews the will for the dispersement instructions.

When the estate is small, then there is not any need to probate the estate. The estate size limit in dollars, changes over time and is different in each state. In California, the limit is currently $150K. If the estate is less than the state limit, then the affected parties can skip probate.

All probate records in court are public domain records. Anyone may go into a court and see the probate court records. One can look at celebrity records and/and anybody else and check out who got what.

With the goal to avoid the expense and public disclosure possibilities of the probate court process, many people with lots of assets set up a revocable living trust; and transfer most of what they have to their trust.

If you look for the deed to a property at the recorder's office and the deed reads Jack Rogers and Sally Rogers owned their house as a husband and wife, however the couple transferred the title to Sally Rogers and Jack Rogers; Trustees of the Rogers Clan Trust dated June 6, 2010, you'll know the couple has some kind of trust. Most trusts are revocable living trusts. A revocable trust may be modified anytime.

Trusts usually bypass probate because they have previously proven title to the estate's assets. Properly set up trusts can keep an estate from being part of the public records, a potentially valuable privacy feature.

Folks having assets in their trusts may also have a will, to put things they might have forgotten to place inside the trusts. Revocable living trusts aren't a separate legal entity apart from the trustees, because individual(s) are the owners of each property within a trust. This means property in such trusts aren't protected from creditors.

Trusts and probate are complex subjects, and this article summarizes the way things usually work. Of course, there's lots of exceptions, a lot of red tape, and legalese too. When enforcing a money judgment, probate court and divorce records contain a lot of good information.

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