Losing a loved one is tough, and the thought of navigating the estate process, especially while grieving, can be daunting. While probate is the legal process necessary to transfer assets from the deceased person’s name to their heirs or beneficiaries, it is not always required. Let’s look at common situations that allow an estate to bypass the probate process entirely.

Jointly Held Assets

Assets such as bank accounts and real estate can be owned individually or jointly by two or more people. In a joint tenancy arrangement, the asset immediately becomes the property of the surviving joint owner upon the death of the other. Because the title is automatically transferred, there is no need for probate.

Assets with Named Beneficiaries

Certain assets, like life insurance policies and retirement accounts, allow the owner to name specific beneficiaries who will receive a direct payout upon their death. Often referred to as “Payable on Death” (POD) or “Transfer on Death” (TOD) designations, these provide quick transfers with minimal documentation to the named individuals, bypassing the need for probate.

Assets Owned By Legal Entities

A legally created entity, such as a Trust, Limited Liability Company (LLC), or Corporation, can hold title to assets. These entities are frequently established specifically for probate avoidance. Any asset owned by a legal entity is not subject to probate; instead, the entity’s governing documents dictate the disposition of the asset upon death.

Understanding when probate is Not necessary is important, but if it’s necessary contact an experienced probate attorney in Rhode Island

Understanding these common exceptions is the first step toward smart estate planning. By strategically titling your assets and utilizing beneficiary designations, you can save your loved ones significant time, expense, and stress after your passing. However, estate laws are complex and vary by state. Consulting with an experienced estate planning attorney is the best way to ensure your assets are titled correctly and your plan meets your specific goals for probate avoidance.

A courtroom is a fantastic place for a lawyer to get a real education. I’m telling you, probate court is like a masterclass in “What Not to Do” when it comes to estate planning. I see all sorts of things, but the common theme is always the same: a badly-written plan leaves a massive, expensive mess for a family to clean up.

The Estate Planning Mistake One Client Of Mine Made Recently

One guy, bless his heart, used one of those self-help legal websites to whip up his will. He must have been having an off day because he somehow managed to name himself as his own executor! That’s right, he put himself in charge of handling his estate… from the afterlife. Apparently, his son did not bother to read the will, as he presented it to the court with the impression that he was the executor. That was one confused judge! The will was also not signed properly, and in the end, the court rejected it.

I could probably jot down 100 reasons why trusting your life savings and family’s future to artificial intelligence is a bad idea, but let’s just stick to the main point: These are serious legal documents with serious, real-world consequences.

For example, do you know the difference between per stirpes and per capita? If your answer is “Sounds like something from a fancy Italian restaurant,” then you absolutely need an attorney. These are not fill-in-the-blank puzzles.

Automated Legal Documents Aren’t New

Now, automated legal documents aren’t new. For decades, you could log on to a website, fill in a few boxes, and poof! Out pops a contract or a will. Sounds easy, right? Not so fast, my friend.

The whole process of planning your estate is full of legal landmines that most people don’t even know exist. A seasoned estate planning attorney is like a detective. We dig deeper and ask those awkward, slightly nosey questions to make sure your plan actually meets your goals, not just whatever the computer form asks for.

The newest generation of AI, like ChatGPT, is even more casual. You just politely ask it to “draft a will,” give it a few names, and it spits something out. But here’s the kicker:

ChatGPT can’t give legal advice. It just rearranges words. 

Artificial intelligence doesn’t care. It won’t ask the vital follow-up questions to uncover the elephant-in-the-room concern you didn’t even realize you had.

A Human Can Read The Room, Which An “AI” Bot Could Never Do

This brings me to the messy, human side of planning. Attorneys are just people with families and feelings. Experienced estate planning attorneys are especially good at reading the room. We pick up on your body language and tone, all the stuff you don’t say, to truly understand your worries and give you the best legal guidance. After all, a robot can’t offer you a comforting tissue or understand the quiet sigh when you talk about Uncle Frank.

Avoid Legal Landmines, Have A Real Experienced Estate Planning Attorney In Rhode Island Help You Today

Whether you stumbled across this blog post while searching for an easy way to draft your estate plan, or you currently have a will that you put together yourself or with the help of AI, you’re in the right place.  Resist the Robots!  Book a call with me and I’ll help you avoid tough lessons that come from experiencing probate court, saving you time and money!

When people think about estate planning, wills and trusts often come to mind first. But there is a simple tool that can make a big difference in ensuring your assets pass smoothly to your loved ones: beneficiary designations.

A beneficiary designation is a simple way to name who will receive a particular asset when you pass away. Many types of accounts and financial products allow you to assign beneficiaries, such as:

Retirement accounts (IRAs, 401(k)s, etc.)

Life insurance policies

Bank accounts and certificates of deposit (often through a “payable on death” or “transfer on death” designation)

Investment or brokerage accounts (through a “transfer on death” designation)

When you pass, these assets typically transfer directly to the named beneficiary, avoiding the delays and expenses of probate and ensures the asset will be immediately available to your beneficiaries.

When Is It Appropriate to Name a Transfer on Death Beneficiary?

Naming a transfer on death beneficiary is often appropriate if you want assets to pass quickly and efficiently to a loved one without going through probate. For example, a bank account with a transfer-on-death designation will transfer directly to your chosen individual, even if your will says something different.

That said, beneficiary designations are not always the best choice in more complex family or tax situations.

For instance, if you have minor children, loved ones with special needs, or blended family dynamics, direct transfer to the beneficiary may create unintended consequences. In those situations, it may be more effective to use a trust. 💡 (contact an expert estate planning attorney for your individual situation)

How Beneficiary Designations Work With Other Estate Planning Tools ⚒️

It is important to understand that beneficiary designations override what is written in your will or trust. If your will leaves your life insurance policy to your spouse but your policy lists your sibling as the beneficiary, the insurance company will pay your sibling. This is why aligning your beneficiary designations with your overall estate plan is critical.

Trusts and wills are powerful tools, but they need to be coordinated with your beneficiary designations to ensure everything works together.

Why Keeping Beneficiary Designations Up to Date Matters… 3 Real Examples From My Experience As A Rhode Island Estate Planning Attorney

Life changes such as marriage, divorce, births, deaths, or simply a change of heart can make your old beneficiary designations outdated. Unfortunately, financial institutions will follow whatever is on file, even if it no longer reflects your wishes.

Outdated designations are one of the most common and preventable estate planning mistakes, such as:

(these are actual clients of mine with their names changed to protect their identities)

No Contingency Plan

Bill and Mary were happily married for 50 years with no children. Each had a life insurance policy naming the other as beneficiary. Bill passed away in December 2024, and Mary received the proceeds. Sadly, she passed shortly after. Because there was no backup beneficiary, everything Mary inherited from Bill, plus her own estate, went through probate. The moral? Updating your beneficiaries takes a few minutes. Probate takes months—or years.

Divorce

Most people know they should update their will, trust, and powers of attorney after a divorce. But that is only half the job. You also need to update your beneficiary designations. George divorced Fran 25 years ago and scrubbed her from his will and house deed. Smart. What he forgot? Stock certificates and bonds that still named Fran. The result: Fran got a payout George never intended, and his family got an unpleasant surprise.

Old Relationships

When Tony signed up for his first 401(k), he was dating Angela. He dutifully named her as his beneficiary and then forgot all about it…

Fast forward 20 years, two IRAs, and a family later, that designation was still in place. When Tony passed, his kids discovered dad’s ex-girlfriend Angela was still on the receiving end. You can imagine how that went over.

Regularly reviewing and updating your designations ensures your assets pass the way you intend. A good rule of thumb is to review them at least every few years or after any major life event.

The Bottom Line: Update Your Beneficiary Designations To Align With Your Living Trust and Overall Goals

Beneficiary designations may seem simple, but they play a critical role in your estate plan. They can help your loved ones avoid probate and access important resources quickly, but if not handled carefully, they can create confusion or conflict.

When it comes to estate planning, you’ve probably heard of wills and living trusts—but what about testamentary trusts? If you’re looking for a way to provide for your loved ones while maintaining some control over how your assets are distributed, a testamentary trust might be a great option. So, what exactly is a testamentary trust, how does it work, and how do you create one? Let’s break it down in simple terms.

What Is a Testamentary Trust?

A testamentary trust is a type of trust that is created through a will and only goes into effect after you pass away. Unlike a revocable living trust, which is set up while you’re still alive, a testamentary trust doesn’t exist until after your death.

Think of it like a set of instructions embedded in your will. When you pass away, your executor follows those instructions to create and manage the trust, ensuring your assets are handled exactly as you intended.

How Are Testamentary Trusts Used?

Testamentary trusts are often used to provide financial protection and structure for beneficiaries. Here are a few common reasons people use them:

Protecting Minor Children – If you have young kids, a testamentary trust can hold their inheritance until they reach a responsible age. Instead of an 18-year-old receiving a lump sum (which could be spent in a flash), the trust can distribute funds over time.

Providing for a Loved One with Special Needs – If a beneficiary has special needs, a testamentary trust can ensure they receive financial support without disqualifying them from government benefits like Medicaid or Social Security.

Managing Assets for Financially Irresponsible Beneficiaries – If you’re worried about a beneficiary blowing through their inheritance, a testamentary trust allows you to set conditions for distributions, for example: “$10,000 per year until they turn 30”.

Tax and Creditor Protection – Testamentary trusts can sometimes provide estate tax benefits or protect assets from creditors or divorce settlements, depending on how they’re structured.

How to Create a Testamentary Trust

Creating a testamentary trust involves a few additional steps

1. 1. Draft a Will That Includes the Trust
      Since a testamentary trust is created through your will, you’ll need to work with an estate planning attorney to include the trust provisions. The will should specify:

Who the trustee will be (the person responsible for managing the trust).

Who the beneficiaries are.

How and when the assets should be distributed.

1. 1. Define the Trust Terms
      You’ll need to decide:
      How long the trust should last (such as, until a child turns 25).

What expenses the trustee is allowed to pay for (education, medical bills, etc.).

Any conditions for distributions, for example, “must graduate college first”).

1. 1. Name the Trustee
      Choosing the right trustee is key. This person (or institution) will be responsible for managing the trust and ensuring your wishes are carried out. It could be a family member, a trusted friend, or a professional fiduciary.
   2. Fund the Trust (After Death)
      Unlike a living trust, a testamentary trust isn’t funded while you’re alive. Instead, your assets go into the trust after you pass away, usually through your will’s probate process. This means your estate will go through probate before the trust becomes active.

Pros and Cons of a Testamentary Trust

Pros:

Control Over Asset Distribution – You decide how and when beneficiaries receive their inheritance.

Great for Minors or Special Needs Beneficiaries – Protects vulnerable individuals from mismanaging their inheritance.

Potential Tax Benefits – Can reduce estate taxes and offer creditor protection.

These types of trusts are great for people that don’t have a lot of assets while they’re living, but have significant funds that will come in through things like life insurance, and other assets that are not liquid until they pass away.

Cons:

Requires Probate – Since it’s created through a will, it must go through probate, which can be time-consuming and costly.

Less Flexibility Than a Living Trust – Since the trust only takes effect after death, you can’t make changes without updating your will.

Ongoing Trustee Fees – If managed by a professional trustee, there could be administrative costs.

Is a Testamentary Trust Right for You?

If you want to provide long-term financial security for your loved ones but aren’t interested in setting up a trust while you’re alive, a testamentary trust can be a smart, structured way to manage your estate. It’s especially useful for parents of young children, individuals with special needs beneficiaries, or those who want to protect assets from mismanagement.

If you’re considering a testamentary trust, consulting with an estate planning attorney is the best way to ensure it’s set up correctly and aligns with your goals. Schedule an appointment by clicking below.

Adults who are no longer able to handle their finances or make healthcare decisions for themselves are set up for “living probate,” which refers to a guardianship or conservatorship.

In simpler terms, you want to avoid guardianship for the same reason you want to avoid probate. The real situation you want to prevent while you are still alive is anything that’s going to start the probate process early.  So if you become incapacitated and cannot handle your finances or make good health care decisions for yourself – who has the authority to make these decisions on your behalf?  Do you want a court to make these decisions?  Or would you decide on your own?

If you do not already have a comprehensive estate plan, you can end up in probate court, subject to guardianship proceedings–While You Are Still Alive. Guardianship is essentially a “living probate.” Just like probate after death, it is a public process to appoint a person to look after your affairs, and you do not get any say in the matter.

So, how can you avoid such a situation? By creating a comprehensive estate plan that includes “Powers of Attorney” for your finances, property and healthcare. You appoint the person you want to handle these matters, not a probate court judge.

What’s a Power of Attorney?

A Power of Attorney (POA) is a legal document that lets you name someone you trust to handle things on your behalf—like paying your bills, managing your property, or talking to your insurance company—if you can’t do it yourself. This person is called your “agent” or “attorney-in-fact.”

POAs can be:

General – giving broad powers to act on your behalf.
Limited – authorizing specific actions or applying for a certain time period.

There’s also a Health Care Proxy (sometimes called a medical POA), which lets someone make medical decisions for you if you’re unable to speak for yourself.

More Than Just a Signature – How to Decide Who Is The Best Fit For Your Powers Of Attorney While You Are Still Alive

When you sign a POA, you’re giving someone the keys to your financial or medical life—so you want to pick that person carefully. Here are a few things to think about:

Do they live nearby in case of emergencies?

Are they capable of handling paperwork and talking to professionals?

Do you trust them 100% to act in your best interest?

Why the Right Wording Matters

Not all POAs are created equal. You can find templates online, but many of them are too vague—or sometimes too specific. That might work fine in theory, but in real life, banks, hospitals, or real estate offices might reject a POA that doesn’t include the exact language they want to see.

I have heard plenty of horror stories where a loved one thought they were prepared, only to be told their POA wasn’t valid for a crucial transaction. That’s why having a properly written POA—customized for your situation—is one of the best gifts you can give yourself and your family.

Bottom Line

If you want to avoid the stress and expense of living probate, a solid Power of Attorney and Health Care Proxy should be at the top of your estate planning to-do list. It’s a simple step that can save your loved ones from a legal headache down the road. If you work with us, your comprehensive estate plan will include POAs for both finances and healthcare–so your plan will protect you from day one, and you will never have to worry about living probate.

If you’re not sure where to start or want to review what you already have, we’re happy to help. Give us a call and let’s make sure your plan covers everything—not just what happens after you’re gone.

Inheriting real estate can be both a financial opportunity and a potential source of stress—especially when multiple heirs are involved. Deciding whether to keep or sell the property depends on a variety of legal, financial, and emotional factors. Below, we explore the pros and cons of each option, how the probate process plays into the decision, and the potential pitfalls of co-owning inherited property.

Option One: Keeping It

Real estate is probably the most common “legacy” asset, because it is a valuable asset that appreciates over time. Passing on real estate to children or grandchildren is one of the best ways to provide financial stability to the younger generations. In addition to providing a home, real estate may also provide rental income. In addition to the financial upside, the heirs may want to keep the property for sentimental reasons. Heirs typically receive a “stepped-up” basis in the property, which could reduce capital gains taxes if the property is sold later.
However, there are downsides to inheriting real estate, such as:

Upkeep and maintenance costs: Property ownership comes with ongoing expenses such as property taxes, insurance, and repairs.

Disagreements among heirs: When multiple people inherit a property, they may not agree on how it should be used or managed.

Limited liquidity: A home isn’t a liquid asset, which can be a challenge if heirs need cash to pay debts or expenses.

Pitfalls of Co-Owning Property with Other Heirs

Joint ownership among heirs often leads to logistical and legal complications. For instance, one heir might want to rent it out, another to sell, and another to keep it as a vacation home. If one heir is unable or unwilling to contribute to maintenance or taxes, tension can quickly build. All heirs typically must agree on major decisions, which can lead to deadlock.One heir may end up doing more work or paying more, leading to resentment or legal disputes.

Potential for Disputes

Inherited property is a frequent source of conflict. Disputes may arise over:

• Who gets to live in or use the property
• How expenses are shared
• Whether to sell or hold
• Distribution of sale proceeds, especially if improvements or maintenance were paid for unequally
• In some cases, one heir may need to file a partition action—a legal process to force the sale or division of the property—if no agreement can be reached.

Option Two: Sell it

Selling the property and splitting cash proceeds is a common way to deal with inherited property. A sale allows for easier division of the assets, eliminates ongoing responsibility for upkeep, and involves fewer financial risks. Any heir or heirs may buy out the other’s interests. Selling comes with its own expenses and pitfalls, including:

Emotional loss: Letting go of a family home can be emotionally difficult.

Timing the market: Selling during a slow market might mean a lower return.

Tax considerations: Although heirs benefit from a stepped-up basis, there may still be some tax implications depending on the sale price and timing.

Probate Implications

Real estate generally must pass through probate unless it was jointly owned with rights of survivorship or titled in a trust. Probate adds time and expense to the process, especially if the estate is complex or the property is located in a different state. If the heirs decide to sell the property during probate, the executor or administrator must seek court approval before the property can be sold. Selling after probate is completed is generally simpler, but still requires coordination among the heirs and clear title to the property.

Unsure Which Option Is Best For You?  Talk To An Experienced Probate Attorney

Inheriting property can be a blessing or a burden. Whether to keep or sell depends on your financial goals, family dynamics, and the practical realities of co-ownership. It’s always wise to consult with an estate attorney and financial advisor to understand your rights and responsibilities before making a decision.

Wills and trusts the two most common tools used in estate planning to ensure your assets are distributed according to your wishes. While both serve the fundamental purpose of passing on wealth and protecting your loved ones, these documents function in different ways and offer distinct advantages. Understanding the key differences—such as probate avoidance, privacy, control, and flexibility—can help you determine which option best suits your needs. Both a will and a trust are essential components of a well crafted estate plan. So, let’s break down wills and trusts side by side to help you make an informed decision about your estate plan.

Whether a will or a trust will work best for you depends on your individual circumstances, goals, and the level of control you want over your estate. Wills offer a straightforward way to distribute assets, are usually less expensive, but require probate. Trusts on the other hand provide greater flexibility, privacy and avoid probate court proceedings, but involve more upfront effort and cost.

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.

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.

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!