Probate

Three Reasons Why You Want to Avoid Probate For Your Estate

Jill Santiago 0 Comment

The short definition of probate is: “Probate is the court action that changes the title of assets from a deceased person to the beneficiaries or heirs.”

Whether or not someone leaves a will, probate is often necessary. It is a common misconception that creating a will, or holding assets jointly, will avoid probate. Simply leaving assets to someone in your will does not give them the right to those assets. Rather, a probate court will determine whether a will is valid and ultimately approve distribution of assets.

When a loved one passes away, someone must step up and manage the estate. The person entitled to do this under a will is the Executor. This person becomes a fiduciary of the estate and has a duty to act in the best interest of the beneficiaries. As an executor, you will need to gather certain documents and information in order to open probate, including:

  • Death Certificate
  • Will
  • All asset statements
  • All Bills
  • Funeral home bill

In Rhode Island, the probate process is governed by Chapter 33 of the General Laws, but each city and town has its own probate court located at the town or city hall. Each town has its own procedural rules. The process can be confusing and overwhelming, and most people elect to hire an attorney to handle probate.

Doesn’t sound too bad, right? Usually, probate is a straightforward process, however, there are several reasons you may want to avoid probate for your own estate.

1. Is Probate A Public Process In Rhode Island?

Just like a town meeting, anyone can attend a probate court hearing. Likewise, anyone can view documents filed with the probate court, including your will. The purpose of public probate is to give interested parties the opportunity to object to the appointment of a personal representative of the estate (also known as an executor when named under a will, or an administrator when there is no will), or to challenge the will.

If you choose to leave your assets to someone other than your heirs at law, it is important to understand that your heirs will be notified.

2. The Probate Process takes at least six months to complete

Because creditors have a right to be paid from the assets of the estate, a probate case must remain open for a minimum of six months to allow creditors to file claims against the estate. This means that your heirs or beneficiaries must wait at least six months before receiving their inheritance. 

3. Probate can be expensive

A probate case involves court fees, administration fees, and of course, attorney’s fees. In addition, larger estates may be subject to estate taxes. All of these fees are deducted from the beneficiaries’ inheritance.

Avoiding Probate Is Easy With Proper Estate Planning, But If You Can’t Avoid Probate, Work With An Experience Probate Attorney in Rhode Island

In some cases, probate cannot be avoided. Lack of planning and poor planning subjects your estate to the public probate process, fees and taxes, reducing the amount your loved one’s will inherit. You can create an estate plan with the help of an experienced estate planning attorney that avoids the probate process and saves your loved ones time and money. However, you can’t create one for someone else. If you are tasked with handling probate for a loved one, call the law office of Jill M Santiago and we will assist you with the process.

estate planning wills and trusts Probate Trust Administration

Rhode Island Probate vs. Trust Administration Compared Side By Side

Jill Santiago 0 Comment

Do you need a will, or do you need a trust? Confused about the difference? The major difference is probate – which is the court process that applies to a person’s estate whether they leave a will or not. When it comes to estate planning, understanding the difference between probate and trust administration can significantly impact your loved ones and the future of your assets. Poor planning can lead to lengthy legal processes, unnecessary expenses, and stress for those you leave behind. Here, we compare side-by-side the outcomes of planning with a will vs a trust.

Probate Estate

Trust Administration
1. Court action is required.
A petition must be filed with the probate court to appoint a personal representative of the estate. If there is no will, the petition is for “Administration.” Where there is a will the petition is for “Probate of Will.”		 Avoids court actions altogether.
When properly drafted and funded, a Trust will render probate unnecessary, because you will transfer title of assets to the Trust, avoiding the need to retitle assets through probate.
2. Process can take 6 months or more.
Creditors have a right to be paid from the assets of the estate. From the time the probate is opened, creditors have a period of six months to file claims with the probate court. For this reason, the case must remain open for a minimum of 6 months. Very often, it will take a year or more.		 2.Beneficiaries will not have to wait 6 months to receive their inheritance.
Once administrative fees, costs and taxes are calculated, the trust property can be distributed to the beneficiaries. Also, because the assets are already in the trust, your successor trustee will not have to wait to access funds to pay for final expenses.
3. Probate case is open to the public.
Probate is a matter of public record. Anyone may attend probate court hearings or request to see documents that are filed with the probate court.		 3. Completely private process.
Trusts are not filed with the court. The only persons entitled to see the trust are your successor trustees and your named beneficiaries.
You may be relying on state laws and/or probate court judges to decide who gets your assets and who is in charge of your estate.
The appointment of your executor or estate administrator must be approved by the probate court.
4. You may be relying on state laws and/or probate court judges to decide who gets your assets and who is in charge of your estate.
The appointment of your executor or estate administrator must be approved by the probate court.		 4. You are in control of how you want your assets distributed.
You will be able to control how your beneficiaries receive their share of the trust assets.
5. You may be opening the estate up to taxes.
Failing to plan for your estate can result in your beneficiaries or heirs paying inheritance and/or capital gains taxes.		 5. Can avoid or minimize estate taxes.
When drafted and funded correctly, trusts may significantly reduce or eliminate costly tax burdens.

Of course, this is not an exhaustive list of all the differences between planning with and without trusts, but a basic overview of the consequences of your estate planning, or lack thereof! Whether you need to include a trust in your estate plan depends upon your circumstances and your goals. You should talk to an experienced estate planning attorney to assess your situation and create a plan that works for you.  Book a call with Jill M Santiago by clicking the link below!