Do You Have to Go through Probate When Someone Dies?

Probate is a required court proceeding under certain circumstances, although the rules surrounding probate are slightly different from state to state. In Hawaii, if a person dies owning real estate in their own name or if the total value of personal property is worth more than $100,000, their estate must be probated. In other states that threshold may be lower. Most states require probate regardless of the estate’s value, unless the estate assets are arranged to avoid probate.

This is explained in a recent article “Estate Planning Insights—Understanding Probate” from The Hawaii Herald.

Probate also requires written notice to be sent to the persons named in the will and to persons who would have inherited, if there had been no will. This is a big reason why many people use trusts and other alternative estate planning strategies. In addition, a will becomes part of the public record when it goes through probate, so creditors and others can see your will and learn all about your estate. So can estranged family members, ex-spouses, people looking for sales leads and thieves!

If there is no will, assets are distributed according to the state’s law of intestacy. These laws specify who receives inheritances, based on kinship. If a will is deemed invalid by the court, then the will is discarded, as are your wishes, and the laws of intestacy take over. This is another reason to work with an experienced estate planning attorney to create a properly prepared will and estate plan.

Probate can be a time-consuming process, delaying the distribution of assets. If the estate is complex, the process could take years.

Certain assets do not go through probate. These includes assets held by two or more people as “joint tenants” or “tenants by the entirety.” Real estate, checking accounts, saving accounts, and investment accounts can be owned this way. However, there can be pitfalls. If one person has debts, creditors may come after the assets, regardless of who the original owner may be.

Assets with a named beneficiary do not go through probate. This includes life insurance, IRAs, 401(k)s, annuities, savings bonds, “Transfer on Death (TOD accounts) and “Pay on Death” (POD accounts). It is very important to review all beneficiary designations every few years. Someone you may have named as a co-owner twenty years ago may no longer be in your life, or you may want to change the beneficiary. If you do not make any changes, whoever you originally named on the account will receive the assets.

Trusts are used to avoid probate, while directing what will happen to assets when you die. A Revocable Living Trust allows you to maintain control over the assets while living, but because you still have control over the assets in the trust, they are considered a countable asset by Medicaid.

To protect your assets from going through probate and to prepare for possible long-term care needs, an estate planning attorney can create a plan, possibly including a Medicaid Asset Protection Trust (MAPT).

Reference: The Hawaii Herald (Jan. 21, 2022) “Estate Planning Insights—Understanding Probate”

When Should a Trust Be Reviewed?

Life changes, and laws change too. The great trust created two decades ago may not be a good idea today and may no longer be suitable for you or your beneficiaries. As a general rule, you should review your estate plan and trust every other year, according to the article “Revisit trust on a regular basis” from the Santa Cruz Sentinel.

Start with the Table of Contents, if there is one. There should be language concerning “Successor Trustees.” Are the trustees you named still alive? Are they still part of your life, and do you still trust them? How are their money skills? If they don’t get along with the rest of the family, or if they have been embroiled in a series of petty disputes, they may not be appropriate to manage your trust. Don’t be afraid to make changes. Your estate planning attorney will know how to do this smoothly and properly.

Next, find the paragraph that discusses “Disposition on Death” or “Disposition on Death of Surviving Spouse.” Does it still make sense for your loved ones? Have any children or family members who are listed as receiving benefits died? Are any heirs disabled and receiving government benefits? Have any of your children developed addictions, problems handling money, married people you don’t trust, or are preparing to divorce their spouses? Changes can be made to protect your children from themselves and from others in their lives.

Look for a “Schedule of Trust Assets.” When was the last time this was updated? If you’ve moved and the trust still lists your last residence, you need to change it. Is your new home in the trust? Are retirement accounts correctly listed? Do you have new assets you’ve never placed in the trust? This is a common, and costly, oversight.

If married, how does the trust address what occurs between the death of the first spouse and the surviving spouse? Do you have an A/B trust to divide everything between a Survivor’s Trust and a Bypass Trust or Exemption Trust? Maybe you don’t need or want an A/B trust anymore. Talk with your estate planning attorney to be sure this is structured properly for your life right now.

How is your health? If you or a spouse are in a nursing home or if one of you is ill and likely to needs nursing home care, it may be time to start planning for a Medicaid Asset Protection Trust.

While you’re reviewing your trusts, trustees and beneficiaries, don’t forget to review the people named as beneficiaries for your retirement accounts and life insurance policies. These should be reviewed regularly as well.

Reviewing your trust and estate plan on a regular basis is just as necessary as an annual physical. Leaving your accumulated assets unprotected is easily fixed, while you are alive and well.

Reference: Santa Cruz Sentinel (Nov. 20, 2021) “Revisit trust on a regular basis”

Different Trusts for Different Estate Planning Purposes

There are a few things all trusts have in common, explains the article “All trusts are not alike,” from the Times Herald-Record. They all have a “grantor,” the person who creates the trust, a “trustee,” the person who is in charge of the trust, and “beneficiaries,” the people who receive trust income or assets. After that, they are all different. Here’s an overview of the different types of trusts and how they are used in estate planning.

“Revocable Living Trust” is a trust created while the grantor is still alive, when assets are transferred into the trust. The trustee transfers assets to beneficiaries, when the grantor dies. The trustee does not have to be appointed by the court, so there’s no need for the assets in the trust to go through probate. Living trusts are used to save time and money, when settling estates and to avoid will contests.

A “Medicaid Asset Protection Trust” (MAPT) is an irrevocable trust created during the lifetime of the grantor. It is used to shield assets from the grantor’s nursing home costs but is only effective five years after assets have been placed in the trust. The assets are also shielded from home care costs after assets are in the trust for two and a half years. Assets in the MAPT trust do not go through probate.

The Supplemental or Special Needs Trust (SNT) is used to hold assets for a disabled person who receives means-tested government benefits, like Supplemental Security Income and Medicaid. The trustee is permitted to use the trust assets to benefit the individual but may not give trust assets directly to the individual. The SNT lets the beneficiary have access to assets, without jeopardizing their government benefits.

An “Inheritance Trust” is created by the grantor for a beneficiary and leaves the inheritance in trust for the beneficiary on the death of the trust’s creator. Assets do not go directly to the beneficiary. If the beneficiary dies, the remaining assets in the trust go to the beneficiary’s children, and not to the spouse. This is a means of keeping assets in the bloodline and protected from the beneficiary’s divorces, creditors and lawsuits.

An “Irrevocable Life Insurance Trust” (ILIT) owns life insurance to pay for the grantor’s estate taxes and keeps the value of the life insurance policy out of the grantor’s estate, minimizing estate taxes. As of this writing, the federal estate tax exemption is $11.58 million per person.

A “Pet Trust” holds assets to be used to care for the grantor’s surviving pets. There is a trustee who is charge of the assets, and usually a caretaker is tasked to care for the pets. There are instances where the same person serves as the trustee and the caretaker. When the pets die, remaining trust assets go to named contingent beneficiaries.

A “Testamentary Trust” is created by a will, and assets held in a Testamentary Trust do not avoid probate and do not help to minimize estate taxes.

An estate planning attorney in your area will know which of these trusts will best benefit your situation.

Reference: Times Herald-Record (August 1,2020) “All trusts are not alike”