Probate makes no sense to me.

[cabmandone]

A person takes the time to have a Will made. The Will names the executors. BUT the court has to officially appoint the executor. The rules of the probate court dictate the actions of the executor.

A person takes the time to create a Trust. The Trust names the successor trustee. When the Grantor passes, the Successor only has to accept their position as Trustee. No court involved. The Trust dictates the actions of the trustee.

Two legal documents but two completely different processes. Why?? I don't understand why the court needs to be involved in appointing the executors unless someone contests the Will? If the will states "....." is executor and the assets of the estate are to be distributed to the beneficiaries equally, why does a court need to be involved at all?

At a point the two, Will and Trust, meet where an inventory of assets needs to be compiled. The difference is the court tells the executors when assets can be distributed whereas a Trust allows the trustee to distribute assets almost immediately. Again, as long as no one contests, why is the court involved?

I don't understand the probate process. I understand that a Will and a Trust are two completely different instruments. I just don't understand why, if no one contests the will or disputes the actions of the executors, that the court needs to be involved at all.

It all seems like a money and a time suck to me where the intent of the person who created either instrument seems clear.

[greglepore]

That's a pretty good explanation. The other difference is that the trustee is subject to scrutiny by the settlor while alive, so there's oversight. The purpose of probate is twofold, maybe three, to allow creditors to come forth, to allow those who would otherwise inherit to challenge, and most importantly to require an accounting by the fiduciary.
All things considered, a good intervivos trust is pretty seamless.

[cabmandone]

Originally Posted by john70t

I'd WAG that it has something to do with any outstanding debt. Only a guess..

A Trust is theoretically isolated and set aside from from daily transactions, being held longer term and untouched in many cases, but Personal Assets outside that might be liable to unpaid loans or court orders for payment or that stack of parking tickets or something else. If there are other personal claims against [deceased]someone's estate that should be a personal matter tho. Not sure why the Court would be involved in that, other than avoiding more court cases.

The Trust or it's distributions to recipients might still be held liable for claw-back in more extreme cases (epstein comes to mind) but that's where it probably gets murky in terms of State laws and jurisdiction etc. Modifying a Trust or using it as a piggy bank might also be grounds to nullify it. I'm sure it gets complicated. In Law, almost everything that can possibly go wrong has already been handled before.

An attorney pointed out to me that the estate, and more specifically the executors, are responsible for any claims by creditors for 12 months after death.

In my case, there's a Trust AND a Will that stipulates all residuary transfers to the Trust upon death. The Trust is responsible for the bills of the Grantor and the Grantor's estate. Seems pretty simple! But... it's not. It makes no sense to me why, when the Will is clear, and the Trust is responsible for any and all bills of the Grantor, a court has to be involved. It seems overly complicated where both documents provide clear intent.

The problem for me is that a car didn't T.O.D to the trust so now we go through probate since there's no surviving spouse and the value of the vehicle is above the "small estate" limit that could otherwise expedite probate.

[dad911]

NJ the process was surprisingly easier. With my mom's estate, we just registered a copy of the will with the county, and proof we notified beneficiaries with copies of the will. They even supplied forms for the beneficiaries to sign off on before they received assets, basically to CYA the executors.

Difficult part was trying to get some of the investment companies to release funds to the estate account. Vanguard sucked in this respect, took almost a year.

Best were the POD accounts, they skip probate, go right to the beneficiaries.

The worst part was distributing half of my mom's jewelry to my ex-sister, who hadn't seen my mom in ten+ years, and didn't visit when mom was dying, despite living 10 minutes away.

[matthewb0051]

One big reason for the difference on the Will side, is that the Court's approval results in Letters Testamentary, which give the Executor the legal authority to take action on behalf of the deceased and his/her affairs. Technically the Executor can't just run around cancelling accounts or selling off assets without LettersT.

A friend of mine had a criminal case recently where the defendant was charged with criminal trespass of his dead grandfather's house. His mother and aunt had not processed the grandfather's estate thru probate and just assumed ownership of his crap. I bet it happens more often than we know. Verdict was not guilty if anyone is interested.

When I settled my father's estate, I was only asked for my Letters Test a few times. Most businesses didn't care, like the fitness club which just looked up his obituary online.

[red 928]

Lawyers make the rules. (1)
Lawyers interpret the rules.
Lawyers implement the rules.
Lawyers profit from the rules.

Makes perfect sense. If you are a lawyer.


(1) the majority of lawmakers are lawyers.
Stop voting for lawyers.

[wdfifteen]

Gosh Nick, I thought you knew everything.

[cabmandone]

Originally Posted by red 928

Lawyers make the rules. (1)
Lawyers interpret the rules.
Lawyers implement the rules.
Lawyers profit from the rules.

Makes perfect sense. If you are a lawyer.


(1) the majority of lawmakers are lawyers.
Stop voting for lawyers.

That's what I found when discussing this with a friend who is a lawyer. He did say he thinks the process has flaws but was ultimately supportive. My main point, and I think it comes from a libertarian perspective, is that it makes no sense for the court to even be involved if a Will exists and certainly not when executors are named. His point was that a Trust is a contract where a Will is not considered a contract. The Will "nominates" and executor and the Court officially appoints whereas a Trust appoints a Successor upon the death of the Grantor.

[cabmandone]

Originally Posted by john70t

(again guessing)
The car probably wasn't titled/held/registered/whatever within the Trust...ie A separate entity...Like business property.
Thus different application applies.
Them's the rules


Address that problem head on.

Was it truly owned and operated as personal property? Or as an investment or other? Some vehicles were used as business advertisements. Were there any previous titling for it under any other names? Worth a check in all the records. Paperwork can change everything. Or not.

'Valuation' of an asset is probably determined by 'Fair Market Value' and any comparable sales today given the condition.
It's a big grey area. Don't ever lie. But be able to state your position favorably.

It was titled in my dad's name. Ohio recognizes Transfer on Death and you can also list beneficiaries in the event the owner dies. My mistake was not TOD'ing the car to the Trust. The attorney my parents used advised against titling the car in the name of the trust. I never asked why.

The Estate, a car, is now tied up in probate which was completely my mistake. I thought about the car not being in the trust a few weeks before my dad died and just didn't get the issue corrected. I thought I had more time. I didn't.

[cabmandone]

Originally Posted by matthewb0051

One big reason for the difference on the Will side, is that the Court's approval results in Letters Testamentary, which give the Executor the legal authority to take action on behalf of the deceased and his/her affairs. Technically the Executor can't just run around cancelling accounts or selling off assets without LettersT.

That's exactly one of my frustrations with a Will vs. a Trust. The Court has to give the Executor authority where the Trust automatically gives the Successor Trustee authority. The only thing I need to show as Successor Trustee is the page of the Trust that names me Successor. IMO a person should be able to do the same as Executor and just show the will naming them Executor. But nope! The court has to officially appoint someone and give them authority to act. It doesn't make sense to me. As I said in my OP, it seems like a big time and money suck.