24th Sep 2013
One objective of estate planning nowadays is the avoidance of probate. But, you may ask: If people want to avoid probate, why was probate created in the first place? The answer is simply that the process called probate was created with the best intentions to protect all parties concerned: the decedent, the designated beneficiaries and the creditors.
The word “probate” comes from the Latin “probation”, which means “to prove.” In colonial America, the heirs of a decedent had to present themselves before the court to “probate the will” of their deceased relative. They had to prove that the document was indeed executed by their deceased relative and that they were the heirs so named in the will. However, the probate court in an effort to be fair also wanted to give the decedent’s creditors their day in court. The court gave ample notice so that all the creditors of the deceased would be apprised of the person’s death. Now, once before the probate court, the creditors had to prove that the decedent owed them money.
From the description above, you can immediately see the good points of probate. The probate court wanted to be fair and impartial. It wanted to make sure that the people who received their inheritance are really the beneficiaries of the decedent. The probate court also wanted to ensure that the creditors will also be paid. The probate process was very thorough, time-consuming and costly since it involved paying lawyers and legal functionaries.
It didn’t take long for people to devise was to avoid the probate process. Estate planning mechanisms such as the living Trust were created so as to make transfer of assets from the decedent to the beneficiaries smooth and hassle-free. Probate-free, if you will.
However, even with the avoidance of probate, the new estate planning instruments and mechanisms still follow the old procedure of probate – without going through the probate process. In a Living Trust, the grantor or estate owner will write instructions as to how his creditors will be paid after his death. His designated Trustee will comply with his wishes in this regard. The beneficiaries will also receive their due inheritance. Without having to undergo probate, they may get their share of the estate faster and with less stress in the process.
The new estate planning instruments such as the Living Trust help you to avoid probate while still meeting the needs of the stakeholders of the decedent – the beneficiaries and the creditors. In other words, lawyers engaged in probate law do not help you circumvent the law; they use their knowledge of the law to help you with your needs.
The law is a majestic and dynamic concept. It does not remain fixed in the Roman times or colonial America. Rather, it evolves and adapts itself to the needs of the times. Your estate planning specialists will use their expertise to make sure that you get what you intended in a given situation,
Now, that is having the law on your side.