"Where there's a will there's a way" is a very satisfying statement. It is customarily interpreted to mean that if someone is determined enough to take some action, she will always find a way to accomplish her objectives. (I use the feminine pronoun here just because it seems that women have more patience and perseverance than men.)
What you may not realize is that the above statement may have actually been generated by someone's dissatisfying experience with the Probate process. You see, when someone dies with a Last Will and Testament, or a Will, in order to be properly settled and distributed, the estate must go through a State mandated legal process in the Courts. This process is referred to as probate.
Court involvement always means time delays, costs and maybe even attorney fees and undue publicity. Hence, the original statement may have been "Where there's a Will, There's a Wait." The heirs must wait to receive their inheritance. This wait can be totally eliminated with a properly prepared revocable living trust. Yes, even for those smaller estates!
I love this letter to the editor of a major newspaper, from and impatient relative of a decedent who had to wait for the will to be settled through the probate process. It is clear, succinct, and to the point:
"Dear Editor,
In his recent column offering legal comment as a supposed public service, [a Phoenix lawyer] candidly acknowledges that much of the public's animosity towards lawyers derives from the skinning that a deceased person's heirs receive in the probate process. Amen to that sentiment. I have recently endured the process of settling a simple, solvent estate of relatively small size and with only one heir... "
My initial response to this letter was one of shock: Is there really public animosity toward lawyers? (All right, I admit I already knew the answer to that question.) But the overwhelming truth of the letter is frightening. The writer declares that this is a small, simple estate, meaning the process shouldn't be complicated. And the writer clarifies that it's a solvent estate, meaning there aren't any creditors to worry about. An estate "with only one heir" indicates no one will bicker over the property.
The writer continues his comments about an attorney's column in a paper:
"... I was mulched of nearly $10,000 in attorney's fees. I invite those who would fancy a protracted adventure into the Byzantine complexities of the law to have a go at probate. If they would see the legal process at its larcenist worst. What [the attorney] could have told his readers is that one can have a so-called living trust drawn and thereby avoid virtually all the preposterous, make work, flap-doodle of a probated will. The trust is easy, quick, and cheap. Moreover, it is private and avoids the needless spreading of a dead loved one's personal and business affairs throughout the courthouse records."-- by Robert W. Blair.
To Mr. Blair, I emphatically reply, "Hear! Hear!" Perhaps a similar experience inspired Charles Hughes Evans to declare, "The United States is the greatest law factory the world has ever known."
Did you get that? Use a revocable living trust.
Using a trust has become the most popular way to avoid going through probate. The major difference between a will and a trust is the effect of the documents. A will becomes operative only upon the death of the person who's will it is. That means it is subject to probate.
A trust, on the other hand, becomes operative the moment it is drafted and signed. It is in effect while you are still alive. In your Trust, as in your Will, you describe who you wish should receive your assets (which are now titled in the name of your Trust) and who you appoint to handle your estate upon your death, or even your disability. But in addition to that, the Trust does all the work of the Probate Court.
As a result, your estate will not be tied up in the courts. Where there's a trust, there's NO wait. That is unless you decide there is a reason your heirs should wait for some event or age before they can inherit your assets. That will be spelled out in your trust.
So if you choose to use a trust, you have found a way to accomplish your objectives without a wait. It's only subject to your instructions. So the new satisfying statement is: "Where there's a Trust, There's no wait!"
Discover the Secrets of Wealth Preservation as expert Estate Planning Attorney Clint W. Smith, J.D. reveals the proven estate protecting strategies that have been used by the wealthy for centuries. Visit http://www.estateplanningdr.com/ to download your free copy of "12 Misconceptions About Wills" and receive more tips and tools to protect your state from taxes and probate.
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