How to Avoid Court Interference with Your Estate Plan
It is pretty clear why people in general want to avoid court involvement in an estate plan for financial reasons, since everyone knows probate can be costly and time consuming for those involved. However, there is an emotional component to it as well. Your assets are just that: yours. Due to the personal nature of the situation, your assets being disclosed and litigated in a public forum might not be appealing.
If you feel that the matters of your estate should be kept private and your assets distributed to your loved ones rather than eroded by court fees, you are not alone. Luckily, all it takes to get there is a proactive attitude toward planning your estate so you can learn how to avoid court interference with your estate plan. Let’s explore the potential issues:
Court Interference 101
Two of the most common situations where the court becomes involved in your estate are guardianship and probate:
Guardianship and Conservatorship
First, when someone experiences mental incapacity, documents in their estate plan can direct a trusted person to carry out that individual’s wishes for the situation. However, if you do not have the proper documents in place, your business then becomes an issue for the Court to determine. In such instances, a court proceeding called guardianship or conservatorship (also known as “living probate”) will be initiated to appoint guardians and conservators to manage the affairs of the incapacitated person.
Second, when an estate goes through probate, the court publicly supervises the gathering of probate assets, payment of any outstanding debts, determining whether a will is valid, and who the deceased’s heirs are. These proceedings ultimately determine who should receive the assets after the payment of debts, taxes, and costs.
Free your estate from interference
In order to avoid guardianship, conservatorship, and/or probate, you can work with an estate planning attorney to keep your affairs out of court entirely.
1. Powers of attorney
Agents or attorneys-in-fact are individuals or entities you appoint to make decisions for you, whether medical or financial. You personally select agents or attorneys-in-fact in a document known as a power of attorney. Durable powers of attorney are documents that continue in validity after the incapacity of the maker of the document (i.e. “durable” against incapacity). Since a durable power of attorney continues even in the event of incapacity, a durable power of attorney can help bypass the need for a court-appointed guardianship or conservatorship.
Trusts are legal documents that hold some or all of your assets, and trustees can be either individuals or corporate entities. Unlike wills, trusts do not go through probate. There are several types of trusts, and we can help you decide exactly which kind is best suited to your estate. By setting up and completely funding a revocable living trust, you can accomplish two important things. First, your assets will be distributed to your chosen beneficiaries and won’t go through probate upon your death. Second, you also retain the ability to change or cancel the arrangement during your lifetime enabling you to adjust your plan as your financial or family circumstances change.
Make sure your estate plan is air-tight
Deciding on appropriate powers of attorney and drafting revocable living trusts are just two of the many steps we can take together to keep your affairs free from court involvement. With a solid estate plan prepared with the help of a trusted attorney, you can take comfort knowing everything you have worked so hard to build and maintain will be passed along only to the people who matter most. Give us a call today to learn more about how to avoid court interference with your estate plan through proper estate planning.