Probate avoidance and Death without a Will

What is Probate?

Probate court is the court where heirs of a deceased person must undergo before they can obtain legal title to real estate, checks, and other items. When you do not have a will, one must go through probate court. Unfortunately, many people falsely assume that a will avoids the pain of probate court. This is not true.

A couple weeks back, I had a senior that had a consultation. Her husband had passed away and her home was titled in his name. Thus, legal title was only in her husband's name. Her husband died without a will. This husband and wife was also a product of a second marriage with the husband having two children from past relationships.

In this lady's situation, she could afford to purchase the home that she lived in. However, the probate fees and costs would be a minimal of $5,000 in Cook County. The probate fees and costs would be high because her estate was more than a simple estate. It was more than a simple estate because one adult child's whereabouts were unknown and the second child was a minor (under 18).

In this example, the mortgage was about equal to the fair market value of the house. However, the stepmother did not want to go through the hassle of a court proceeding and dealing with the complexities of court. The minor child would have an attorney appointed for it by the court called a guardian ad litem. Quickly, the stepmother could see that purchasing the house from the stepchildren was going to be difficult. First, the conflict between a stepmother and stepchildren was evident. Second, this stepmother did not want the headache of probate court and fees and costs. Third, probate court often times is not worth the costs and fees and therefore, like this lady, people would rather not bother.

The premise of this story is have your legal affairs in order prior to a disability or death. A will is oftentimes insufficient to avoid the pain of probate court. A revocable living trust or otherwise called a "living" trust is the best option. A living trust is similar to a will where it details your wishes upon death. However, if properly structured, your house and other assets would avoid probate because the living trust is a fictional person not subject to probate court. Thus, your living trust would designate beneficiaries and avoid the pain of probate court.

Sean Robertson, Attorney at Law
Robertson Law Group, LLC
312-498-6080 or 630-364-2318
RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com