Probate Court & Revocable Trusts 2018-12-20T15:39:37+00:00

Probate Court & Revocable Trusts

One of the other things that we discussed was that if you got, if you didn’t do this planning. Suppose Herschel and Nell never had come to me and it became time to plan for their long term care and they were incapacitated. It involves a trip to the probate court for guardianship or conservatorship, so that very often speaks to clients. Get the planning done ahead of time, get the powers of attorney in place now, because that keeps you from having to go to the probate court down the road to get authority to do things that need to be done for your own benefit when it comes to long term care planning. Okay, so Herschel and Nell also expressed to me that they would like to avoid probate, people hear about nightmares of probate, and really probate in Georgia isn’t necessarily as bad as in some states. I’ve been involved in some what’s called an “ancillary probate” where there’s property down, I’ll use Florida as an example, South Carolina is another big one, they’ve got a very thorough, tedious probate process. Georgia doesn’t have that much supervision, if you have a well drafted will you can wave a lot of formalities under that will. So probate doesn’t have to be nightmare. It is getting more and more difficult to deal with courts and making things happen in a timely fashion, even if you are going through the probate process. Another big incentive in other states has been that probate fees can be very expensive in other states, even based on the value of your estate. So, when you go to file a petition to probate the clerk says, “Ok, well what was the estate worth and I’ll tell you what your filing fee is”. So, that’s not the way it works in Georgia, so there hasn’t been a whole lot of incentive historically speaking to avoid probate in Georgia. But a lot of people will hear Suze Orman speak on tv about “you got to have a trust, you got to have a trust, got to have a trust”, she’s in California, that is the case in California because it is very expensive and cumbersome to go through the probate process out there. That said, I am becoming a bigger and bigger fan of revocable trusts here in Georgia, simply for the main reason really, is that it is becoming more and more difficult to probate a will and get it done efficiently, even with the most beautiful will that I have drafted. I know it’s a good will, it just takes forever to get the right person’s attention in the probate court or work your way up to the top of the stack and get those letters issued. So, it can be a good idea to avoid probate all together using a revocable trust and that’s what Herschel and Nell did. We got a revocable trust set up for them, so what that means is they re-titled all of their assets and that’s an integral part of this. If you see clients who have a revocable trust, cause I’m sure you do, sometimes also called a “living trust”, make sure there are things actually titled in that trust. Someone can walk into my office with the most beautiful binder in the whole world and a very nicely drafted trust and I look at them and say, “What’s in your trust?”, and they give me this weird look, “What do you mean, in the trust?”. The house need to be re-titled, the accounts need to be re-titled. So we went through all of that with Herschel and Nell, and the big advantage to doing that is when one of them passes away. Herschel, if he were to pass away, he doesn’t own anything, everything is in the trust and Herschel’s trust document says, “When I die, do the following, so and so takes over as trustee and distribute as follows, continue to hold for Nell, or pass out to the kids, put in a trust for Ted”, whatever they decided to do. So, it’s just really a matter of speed and efficiency with a revocable living trust. So, either a will or a trust you can do the same thing under each one, it’s just a different manner of doing it.

Nadler Biernath LLC assists clients in the Atlanta, Georgia area and throughout Georgia including Kennesaw, Alpharetta, Roswell, Marietta, Buckhead, Johns Creek, Duluth, East Cobb and Dunwoody.