One of the big problems in estate planning is that many people think their current estate plans will avoid probate – but they are wrong. When these people pass away, their families are surprised to discover that the decedent’s estate must still be probated. This is too often the case, even though the deceased had a living trust created.
This is becoming an increasingly common problem and was recently discussed by the Napa Valley Register in “Avoid this living trust problem.”
The problem can result from people buying living trusts through non-attorney trust mills, online legal form services or even some non-specialist attorneys. At the same time, such a person creates a trust, a simple pour-over is also created directing that the entire estate is subject to probate should “pour-over” go into her trust. Unfortunately, for the estate to be placed into a trust, as the pour-over will directs, the estate must first go through probate. This defeats the entire purpose of creating the trust.
Fortunately, this problem is easily avoidable. An estate planning attorney can create a living trust, then help the clients put assets into the trust. Consequently, those assets will not be subject to probate later.
Reference: Napa Valley Register (March 22, 2018) “Avoid this living trust problem.”