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Does a will always wind up in probate?

Posted on 10/20/2010 8:56:38 AM PDT by LouAvul

My father in law is getting his affairs in order, even though he's strong as an ox and likely will outlive us all.

My wife is his only child, and he's dividing the estate up among three people, so far.

He doesn't want to spend the money to establish a trust and he's only got a will. But my wife has heard that a will always winds up in probate and then you've got to hire an attorney, etc.

I always thought it only requires defending if the will is contested. A will doesn't always wind up in litigation, does it?


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1 posted on 10/20/2010 8:56:40 AM PDT by LouAvul
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To: LouAvul

Without a will, it goes to probate and lawyers and judges get to put chunks of it in their own pockets.


2 posted on 10/20/2010 8:59:11 AM PDT by E. Pluribus Unum ("The only stable state is one in which all men are equal before the law." -- Aristotle)
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To: LouAvul

Yes, a will is an absolute invitation to probate court with instruction on how to have your estate handled by the court and executor.


3 posted on 10/20/2010 8:59:20 AM PDT by DryFly
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To: LouAvul

The politicians have made this issue so complicated you really need to hire a lawyer to advise you. It’s a rip off but there you have it.


4 posted on 10/20/2010 8:59:50 AM PDT by DManA
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To: E. Pluribus Unum

If you don’t have a will, the state has one written for you in its Probate Code.


5 posted on 10/20/2010 9:00:45 AM PDT by DryFly
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To: LouAvul

Look at a trust.


6 posted on 10/20/2010 9:01:16 AM PDT by US Navy Vet
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To: LouAvul

Here is one suggestion. Go to Amazon and you can get it used as a paper back for about $1 or so plus $3.99 shipping. The book is 8 Ways To Avoid Probate by Mary Randolph.

He should be able to retitle most of his assets so the majority of them can pass without going through probate. I think real property like cars and homes can get trickier.


7 posted on 10/20/2010 9:01:55 AM PDT by Frantzie (Imam Ob*m* & Democrats support the VICTORY MOSQUE & TV supports Imam)
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To: DryFly
"If you don’t have a will, the state has one written for you in its Probate Code..." and lawyers and judges put chunks of it in their own pockets.
8 posted on 10/20/2010 9:03:11 AM PDT by E. Pluribus Unum ("The only stable state is one in which all men are equal before the law." -- Aristotle)
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To: LouAvul

I hired a lawyer to write my Will. I have no family and all my assets will be split up among non family members so I wanted it to be done correctly so no backlash upon my death. Better to spend a small amount now and be safe.


9 posted on 10/20/2010 9:03:14 AM PDT by devane617 (November!)
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To: LouAvul

Don’t let everyone scare you. When my mother passed away some years after my father, we had to go to probate court. It was all a formality. It took about 20 minutes in the judge’s chambers, signed a few documents to the effect that the will had been executed, and we were on our way. I think there was a $60 court cost, but c’mon, it was $60.


10 posted on 10/20/2010 9:04:48 AM PDT by Melas
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To: LouAvul

I think it will depend on several factors not listed such as what state is it, what is the approximate total value of property to be passed, ? other issues. I do not think you need lawyers involved in some states if the estate is modest and straightforward. Someone petitions the court to be executor and distributes the estate, reports back when it is closed.


11 posted on 10/20/2010 9:05:22 AM PDT by NEMDF
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To: LouAvul

I was executor of my Mother’s estate in Texas.
She had identified me in her will to be the independent executor of her estate. It still went to probate and I had a lawyer friend of my sister help. It was not difficult.


12 posted on 10/20/2010 9:06:27 AM PDT by Elderberry
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To: LouAvul
I am an only child and after my father passed, my mom put my name on everything she owned, so we were co-owners and there was no need for probate.

She put my name on her stocks, her bank accounts etc. We had already sold her home & she was living with us, so it was pretty easy.

13 posted on 10/20/2010 9:07:56 AM PDT by blondee123 (Illinois ELECT Adam Kinzinger - http://www.electadam.com/( rid US of marxism!))
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To: LouAvul

I just went through this a couple months ago.

Probating a will is important since it protects the executor/commissioner. It is not hard or scary and like some other FReepers have mentioned you can do it yourself.

It also provides a specific window for the creditors of the deceased to make a claim against the estate.


14 posted on 10/20/2010 9:09:31 AM PDT by TSgt (Dwayne Elizondo Mountain Dew Herbert Camacho - 44th and current President of the United States)
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To: LouAvul

Yes, a will goes to probate court. The court ensures that the wishes of your will are carried out. The probate usually lasts about a year. This allows all creditors to file claims against the estate. In that same time, your estate lawyer can take care of other business such as state and federal taxes.


15 posted on 10/20/2010 9:11:51 AM PDT by caver (Obama: Home of the Whopper)
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To: LouAvul

A ‘living trust’ will does not, IIRC, as long as none of the heirs try to contest it.


16 posted on 10/20/2010 9:12:03 AM PDT by TomGuy
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To: LouAvul

Anybody can challange a will. Anybody. At. All. A trust is airtight.


17 posted on 10/20/2010 9:14:28 AM PDT by Excellence ("A person is smart. People are dumb, panicky, dangerous animals and you know it.")
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To: LouAvul

If there are significant assets (6-figures) then spend a couple thousand on a SPECIALIST estate planning attorney (not some moron who has done a few wills - they invariably screw things up - and 90% of lawyers are not capable of doing this, so don’t get your family lawyer or brother in law).

You might save a bundle on probate costs, and have other options to avoid estate taxes and other benefits.

This is why the wealthy prosper - because they aren’t afraid to invest in good legal advice. Most people are afraid of writing the check to a lawyer to get good advice, adn they suffer accordingly.


18 posted on 10/20/2010 9:14:59 AM PDT by Atlas Sneezed ("Nobody tell Barack Obama what number comes after a trillion" --S.P.)
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To: LouAvul
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will.

http://en.wikipedia.org/wiki/Probate

If you are distributing assets via a will, you will go through probate.

The only way to avoid it is through joint ownership with right of survivorship, or designating a beneficiary. The former is for bank and investment accounts (and homes), the latter is for retirement accounts.

You can avoid a lot of this with a living trust. But, if he doesn't want to do that, probate will be necessary.

19 posted on 10/20/2010 9:15:40 AM PDT by justlurking (The only remedy for a bad guy with a gun is a good WOMAN (Sgt. Kimberly Munley) with a gun)
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To: blondee123

That is exactly how we handled my husband’s death and how I am handling my affairs.

I just am putting co-owners on properties, have certain beneficiaries on certain accounts.

Of course if you have a normal family it helps. I know even in normal families certain issues arise but in a dysfunctional family they almost always arise.

And of course, if there are a lot of assets and/or a lot of people, things tend to be more difficult. There is always the option of passing out certain things before you pass away, such as Grandmas’ wedding ring and Grandpa’s gun. If you aren’t actively using stuff and are older, it’s best to pass it around early.


20 posted on 10/20/2010 9:17:36 AM PDT by I still care (I miss my friends, bagels, and the NYC skyline - but not the taxes. I love the South.)
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