Nobody wants to think about the things they need to take care of before they die or how to divide their property before they pass. But, for many families, taking care of these daunting tasks can make life much more manageable after their loved one passes away. That is why in the below post, we will discuss not only whether setting up a trust helps you avoid probate, but we will also go over what these trusts are, what is the purpose of probate law, and how an experienced estate planning and administration attorney can provide you the assistance required to do what’s best for your family.
A trust is a type of legal vehicle that allows a third party, also known as the Trustee, to hold and direct assets in a trust fund on behalf of the beneficiary. When individuals create a trust, it not only expands their options when it comes to managing assets but also helps them when they are trying to protect themselves from taxes or hoping to be able to pass down their assets to future generations.
A Living Trust, also known as a Revocable Trust, creates a legal entity that stands separate from an individual and their estate. With this estate planning tool, you do not need verification by the court after you pass away to distribute your assets. Rather, with a Living Trust, your Trustee will be allowed to pass on money and property directly to your heirs without court intervention.
Probate, in simplified terms, is the legal procedure your estate goes through after you pass away. During these legal proceedings, not only will the court get involved, but they will ultimately start the process of distributing your estate to the proper heirs.
If you have a Will or a trust, probate proceedings authenticate your Will and approve your named Executor so that they can distribute your belongings and property to the rightful individuals. During this process, all your assets will be located and assessed for the total value. After this is done and the taxes and debts are paid, the estate’s remaining value will be distributed.
While a Will or trust is not necessary to go through probate, the process will become much more complicated without one, especially since there will be no documentation declaring your final wishes. It will be up to the court to make these decisions on your behalf.
In North Carolina, the term probate is another word for estate administration. Estate administration is the process of handling an individual’s debts and assets after they die. While some estates are administered by “full administration,” many smaller estates can be administered through a more straightforward process.
In addition, unless the decedent sets up complete alternatives to court-supervised estate administration, the estate administration will be handled through the courts, primarily in the office of the appropriate clerk of the superior court. In a “full administration,” the clerk will give the decedent’s representative the authority to provide a public notice to the decedent’s creditors, pay off debts, and distribute the decedent’s remaining property to the named beneficiaries or those entitled to the property under the law.
Although probate court may seem like a hassle, in North Carolina, the probate administration is not as tedious as in many other states. For instance, depending on the circumstances, most estates will be closed within nine months to a year from a person’s death, while others can close in as little as three months. However, to cut this time down even further, there are things you can do to make this process that much easier for your loved ones after you pass away.
If you are looking to avoid probate, one of the best things you can do is have your estate or certain assets placed in a Living Trust. Under this arrangement, your assets become owned by the trust. However, you will be able to continue to use and enjoy them until you die, at which point, the Trustee will distribute the income and the principal of the trust according to the terms of the trust, without the need to probate those assets.
If you are considering creating a trust or have assets that you want to avoid probate in North Carolina, then do not wait any longer to get the legal help you need. Instead, reach out to an experienced North Carolina estate planning and administration attorney for further information. These skilled legal professionals can not only review your assets and estate and help you figure out what assets would have to be probated after your death, but they can also explore your options to structure your assets in a way that you can avoid probate with the help of a probate lawyer.
Contact us today to discuss your legal options regarding trusts and your other estate planning needs.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.