Estate planning is typically separate and distinct from "probate." Proper and well thought-out estate planning may usually avoid the probate process. One can look at estate planning as what we do when we are living, to plan in advance how the assets of our estate will be distributed upon our death. Although death and taxes are inevitable, estate planning is often a subject most people wish to avoid. Again, my advice is to be proactive, so that your loved ones do not have to be in the reactive mode upon your passing. Probate is a term used to describe the legal process upon your passing if you have not placed your assets into some sort of a trust. In other words, if, while you are alive, you have not created some sort of revocable or irrevocable trust, then most likely upon your passing, somebody will be designated to ensure your assets are distributed in the probate process.
Probate is not private because it is done in the courts, and most everything in the court system is a matter of public information, i.e., any individual can go to county courthouses and ask the clerk to view another person's court file, including a deceased person's probate case file. For example, you could pick up the local newspaper, look at the obituaries, discover that "John Doe" had recently passed away. From there, you could go to the local county courthouse and ask the clerk to see "John Doe's" probate case file.
Presuming that John Doe died without some sort of a trust in place, then most likely his estate would be subject to probate. If John Doe died with a will, and his estate was subject to probate, then his will would be in the probate file in the court clerk's office. Anyone can read the will, determine who his beneficiaries are, including his family members, and perhaps in one of the most embarrassing situations, also determine which persons John Doe wanted to keep from receiving his assets. On more than one occasion I have had clients ask me to draft them a will and the will included a provision to only give one dollar to a certain individual. Is this something that you want to be a matter of public record in the court system? If your estate can avoid probate, the distribution of your assets can be a private matter, rather than public.
Regardless of your personal choices, I can draft a will for you that specifies exactly what you want to happen with your assets when you pass away. I often charge a flat fee for drafting wills. Depending on the complexity of your esate, and the number of people whom you wish to receive your assets, the time required will vary accordingly.
Revocable Trust or Irrevocable Trust.
Had John Doe placed his assets (i.e., home and certain other assets) into a trust, then he may have been able to avoid the probate process, and the distribution of poor John Doe's assets would have been kept private. I can help you determine if a trust is right for you. I often charge a flat fee for drafting a trust. Contact me for an appointment to discuss your estate planning needs.
