You often hear that you should see an estate planning attorney to help you avoid probate. Probate is known to be a legal hassle, costly and time-consuming. Most people think of post-mortem probate when they think of probate. Post-mortem probate occurs after death, as the name suggests.
Whether the person dies with a will or not, someone will initiate the probate court to commence estate administration. The executor named in the will is typically the person who starts the probate process. If the person dies intestate (without a will), then any family member or interested party can initiate the process with the probate court.
The post-mortem probate process includes showing the death certificate to the court, taking inventory of assets, notifying creditors and finally distributing assets. It can be complex and span over months, even years before being finalized. To avoid this situation, some people choose to create living trusts during their lifetime with the intention of avoiding probate altogether.
What catches many people off guard is when they fail to complete proper incapacity planning and end up in living probate. This occurs when someone becomes incapacitated, does not have proper plans in place, and becomes declared legally incompetent with a guardian appointed. This process is known as living probate.
The guardian appointed under living probate is accountable to the probate court and required to prepare and file various legal and financial documents, show detailed annual accountings and ensure that all of the ward’s assets remain accounted for and all valid debts are paid. Living probate continues for the entire lifetime of the incapacitated individual, unless circumstances change and the ward can demonstrate that he or she has regained competency.
This situation can absolutely be avoided. To avoid living probate, you simply need to execute incapacity planning documents:
- Durable Power of Attorney for your legal and financial affairs;
- Advance Medical Directive which consists of two parts: (1) Healthcare Power of Attorney, and (2) a Living Will.
These incapacity planning documents allow you to designate in advance who will make important decisions for you if you are not capable of making them for yourself.
If your goal is to avoid probate then you need more than a will. A will goes through probate while a trust document does not. There are numerous legal strategies available to help you avoid the hassle and expense of both types of probate. Schedule a consultation with the experienced estate planning attorneys at Stouffer Legal in the Greater Baltimore area. You can schedule an appointment by calling us at (443) 470-3599 or emailing us at office@stoufferlegal.com.
