As an estate planning attorney, I get the same phone call over and over: “my [fill in the blank] died suddenly without a will” and the assets are frozen and I don’t know what to do. When someone dies without a will, their family is tasked with petitioning the court to appoint a personal representative or an executor to be in charge of administering the estate. It can take several months just to get someone appointed. Meanwhile, a house may be sitting empty, bills are piling up and stress levels are rising among family members still reeling from the sudden passing of a loved one.
Unnecessary Court Involvement In a Time of Grief
In order to have access to the deceased individual’s assets, which are initially frozen at death, someone willing to take charge has to publicly file an application or petition in probate court, asking the court to put him/her in charge to administer the estate. Administering the estate includes paying expenses and debts, collecting assets, notifying interested parties, including creditors, paying taxes and ultimately distributing the decedent’s assets.
Probate is a lengthy court process dictated by the court rules and timelines. The court’s involvement delays the family’s ability to access assets – a hurdle no one wants to deal with in the wake of a devastating loss. In addition, the probate process is entirely public, meaning that the specific assets of the deceased individual are made part of the public record and available for anyone to read.
During such a difficult time, all a person wants is the space to mourn and manage their loved one’s affairs in privacy and peace. With court involvement, the timeline of steps that need to be taken is dictated by the court, and the process of proving your right to manage your loved one’s assets can feel like an unfair burden when there are so many other things to take care of during the death of a loved one.
This isn’t just a problem for the wealthy. Even if you own a modest estate at your death, your family will need to go through the probate court process to transfer ownership of your assets if you don’t have an estate plan in place.
How to Prevent This From Happening to Your Loved Ones
When someone dies without an estate plan in place, the probate court’s involvement can be a lengthy and public. At a minimum, you can expect the probate process to last at least 9 months and oftentimes as long as 18 months or more. Court involvement can be prevented if you have the right documents in place, specifically a revocable living trust to hold your family’s assets. With a trust, the family has immediate access to all of your assets upon your death, eliminating the need to petition a court or wait for its approval before accessing the funds.
A Trust will also keep your family’s finances private. With a Trust, only the person in charge of managing the Trust assets (the Trustee) and the Trust’s direct beneficiaries need to know how the assets in a Trust are used. There is also no court-imposed timeline on the Trustee for taking care of your final matters (with the exception of some tax elections), so your family can move at the pace that’s right for them when the time comes to put your final affairs in order.
The privacy that a trust provides also helps to eliminate potential family conflict because only the parties directly involved in the Trust will know what the Trust says. If issues between family members arise over the contents of the Trust, the Trust will lay out all of your wishes in detail, so that all family members are on the same page and understand your wishes for the ones you’ve left behind.
Guidance for You and the Ones You Love
Most importantly, creating a revocable living Trust through us, your Personal Family Lawyer® firm, ensures your loved ones have someone to turn to for guidance and support during times of uncertainty. No one expects the sudden loss of a loved one, but when it happens, your world is shaken. Even the simplest tasks can feel overwhelming, let alone the work involved to manage a loved one’s affairs.
That’s why we welcome you to meet with us for a Family Wealth Planning Session to discuss your wishes for when you die or if you become incapacitated. During the session, we’ll walk you through all of your options for estate planning and how your choices will impact your loved ones after you’re gone.
If you’re ready to start the estate planning process, contact us today (15-minute discovery call link) for a 15-minute discovery call.