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Estates, Trusts & Probate

LAWYER MIAMI: Florida Attorney Firm Providing Legal Services, Law Offices of Dennis R. Haber, P.A., Miami Lawyer Probate has a bad reputation.

Generations ago, the probate system was conceived as one orderly way of transferring the property of a deceased person to his or her heirs. It was designed to protect the heirs.

Today it has become an ugly, legal nightmare where lawyers, clerks, guardians, administrators, estate appraisers and bonding companies bilk widows and orphans out of their inheritance.

All across the nation, greedy lawyers in league with conniving judges and bureaucrats plunder huge chunks - and sometimes all - of an estate.

First, let's see what's wrong with probate, and then let's see how you can avoid probate - so that your family can get to keep the assets that are rightfully theirs.

There are three things wrong with probate.

First, it costs too much.

In most states, probate fees are set by law as a percent of the “gross” estate. Say, you left an estate consisting of your home, an automobile, stocks and bonds, savings and a few other personal possessions worth $200,000. The executor's commission and attorney's fees to probate this estate in California would amount to $10,300. Average fees in other states range from 3.8% in Utah to 11% in Alaska.

Let me show you how high the stakes are: Maryland legislature has been trying for the past seven years to ban percentage fees in probate cases; every year a lobby organized by probate lawyers has been able to defeat the bill.

The second thing wrong with probate is that it takes too long.

On the average, it takes two to five years to settle an estate. For all practical purposes, the estate is frozen during probate while the judges, court officials and attorneys have a field day picking it apart. The beneficiaries, in the meantime, wait, wait...and wait. This is why many lawyers would rather write Wills for $60 and then make a bundle when the Will is probated.

The third abuse of probate is the unwanted publicity it creates.

Everything in probate court is a matter of public record and, unfortunately, there're individuals who go from probate court to probate court compiling lists which are then sold to unscrupulous people who prey on widows and try to separate them from their inheritance.

How Can You Escape From the Vagaries of Probate?

Now that you know why you should avoid probate, let me show you the most effective way of doing it.

The law has provided everyone with a magic key to probate exemption; it's called inter vivos trust or a Living Trust. With a Living Trust, you can pass on your assets to your spouse or children or other heirs in entirety - without delay, and without the lawyers, administrators, courts, or the appraisers skimming off from the top.

Here's how a Living Trust works. You create the trust by preparing a trust instrument in which you simply identify:

Assets you're transferring to the trust

Beneficiary of the trust (your spouse, children or other heirs)

Trustee (i.e., you) who'll manage the trust

Precisely to help you avoid or reduce the costs and the nightmarish problems of probate, we've put together THE LIVING TRUST KIT. The Kit is designed for a layperson to transfer his principal assets to a Living Trust, name himself as trustee, and designate beneficiaries who'll inherit the estate - without the rigors of probate - upon his death.

The Kit contains step-by-step instructions, filled out samples, and all the necessary forms you'll need to establish your Living Trust.

By creating a simple Living Trust document, you'd have freed yourself of the legalized larceny of probate. Simple as that.

Essence of Living Trust: Simplicity, Flexibility and Control

Living Trust is set up by you while you're alive. You name yourself as trustee and you maintain full control over your assets just as before. You can do whatever you wish to do with them - manage them, sell them, or give them away. The trust does not become effective till you die or become incapacitated.

The person you would designate as beneficiary of the trust (your husband or wife or children) is called successor trustee. Upon your death, the successor trustee takes over the estate immediately without going through probate and terminates the trust. It's that simple.

Your trust would be a Revocable Living Trust. You can abolish the trust or alter its terms or change the beneficiaries at any time you wish. It provides you with the maximum amount of flexibility.

More Benefits of Living Trust

Let me point out two more benefits of Living Trusts. First, disgruntled heirs find trusts extremely difficult to contest. When an estate goes to probate, the court freezes its assets for several months and asks anyone to come forward and contest the Will if they please. Someone contesting a Will doesn't even need to hire a lawyer. But to contest a trust, a disgruntled heir needs to hire a lawyer and file a civil suit. In the meantime, the trustee is free to distribute the assets to the beneficiaries immediately. Your estate isn't tied up in lengthy litigation.

A Living Trust offers another important benefit. A growing number of older Americans are putting their assets into Living Trusts because they want to avoid being placed under a court-appointed guardian if they become unable to manage their affairs. With a Living Trust, you can specify in advance whom you want to manage your affairs if you ever become incompetent.

How Effective Is the Living Trust?

Let's take a simple example of a savings account. Upon your death, the bank would very likely block the account while the Will is being probated. It will not allow any withdrawal from the account without a court order.

However, with a Living Trust, your beneficiary walks into the bank with the trust instrument and the death certificate - and walks out with the money. No two-to-five year delay. No ten percent in expenses. And no publicity.

What Happens If You Own a Business?

Probate can be particularly harsh on a going business. It almost always deals it a fatal blow. Most businesses simply come to a grinding halt while the dead man's Will is being probated. Your business records become public records - open to competitors and creditors alike.

However, under a Living Trust, the successor trustee can continue to run the business without having to wait for the ponderous machinery of judiciary to grind out an approval. Your business doesn't become everybody's business.

A word about taxes. A Revocable Living Trust has no effect on your taxes. There're no advantages nor are there any disadvantages. As a trustee, you'll continue to report all trust transactions on your own income tax return.

In the final analysis, the greatest advantage of a Living Trust lies in the saving of attorney's fees, administrator's and executor's commissions and court costs. It's a magical, wonderful formula that allows you to avoid probate.

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