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  • Northern Virginia Trusts & Estates

How Living Trusts Avoid Probate

While many people have heard from others that it is a good idea to avoid probate court whenever possible, they may or may not know why they should avoid probate court, as well as how. There are two primary problems associated with probate court. First and foremost, probate can tie the decedent’s property up for months, sometimes as long as a year or more. Probate is expensive; in some states the fees associated with probate can take as much as 5 percent of the value of the estate. Probate essentially involves tons of legal forms, keeping track of all filing deadlines and other procedural technicalities. The executor as well as the attorney will receive fees from the estate, and there can be other costs such as appraiser’s fees and court costs. Given the issues associated with probate, it makes more sense in most cases to attempt to avoid probate completely. This can be done through reducing the amount of property which will be subject to probate, primarily through preparation of a living trust.

What are the Advantages to a Virginia Living Trust?

As you can see, probate can be lengthy, expensive, and takes away any privacy the decedent might have wanted regarding their estate after their death. Since the state of Virginia does not implement the Uniform Probate Code, the process of probate in Virginia can be extremely complex except in the case of small estates under the amount of $50,000. Those who will have a net worth less than $50,000 when they die will likely have a very inexpensive, straightforward probate, so may not have to worry about having a living trust prepared. It is important to note that whether a person has a living trust or not, everyone needs a will. If the person has a trust, the will remains a backup document for any property which failed to be included in the trust.

Property Transferred into a Living Trust Does Not Go Through Probate

For those with a trust, but without a will, any property which was not transferred through joint tenancy or through the trust will go to the nearest relative as per state law. Property which is transferred into a living trust prior to death does not go through probate. The successor trustee—the person appointed to handle the trust after the death of the decedent—will transfer ownership of the property to the beneficiaries named in the trust. Normally this process takes only a few weeks, and there are no court fees or attorney fees involved. Once all property has been transferred to the designated beneficiaries, the living trust no longer exists. Since most people want to leave as much of their money and other assets as possible to their designated heirs, skipping probate is a key factor in that desire. The living trust can ensure the beneficiaries receive assets quickly and that they are not required to wait on the probate process and pay probate fees.

Creators of the Trust Maintain Control Until Death

A living trust is similar to a will, except the person making the trust names themselves as trustee. If a married couple create a trust together, they can name themselves co-trustees. The person or couple’s assets are then transferred into the living trust. As trustee of all property and assets, no control over the assets is given up when a living trust is created. The living trust will designate the people or organization who will inherit trust property after the trustee’s death. A successor trustee is named to ensure all the wishes in the living trust are properly carried out. If you want to avoid probate and all the negative aspects associated with probate, speak to an experienced living trust attorney who can help you ensure your wishes will be carried out after your death.

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