There are a variety of reasons why an individual would center their estate planning documents to result in either probate or trust administration. What follows are a few of the more common reasons:
- Cost - The administrative costs of an estate are usually minimal and consist of a filing fee, publishing notice of the estate in a newspaper, and in some cases a personal representative's bond. On average, these expenses total $400 to $500. Paying an attorney is generally more of a concern. An attorney's fee will likely be based on an hourly rate and will thus be determined by the amount of time the attorney spends on the estate administration process. An involved personal representative along with amicable heirs can significantly minimize the amount of time an attorney expends on the estate administration process. As a result, it may be more expensive to draft a trust document then to administer an estate.
- Court Involvement - Estates can proceed under supervised or unsupervised administration. All heirs must consent to unsupervised administration. If an estate proceeds under supervised administration, a court must approve the basic administrative decisions of the estate. This will generally delay the administration process. By contrast, a court is generally not involved with trust administration. An interested person must specifically "docket" a trust before a court will become involved.
- Time - At minimum, an estate must remain open three months from the date the first notice of administration appears in a newspaper. A trust could be administered and distributed as soon as the assets are gathered and the decedent's final expenses are paid.
- Controlled Distributions - A Last Will and Testament does not allow for staggered distributions. A testamentary trust can be created within a Last Will and Testament that will allow for staggered distributions, but estate administration would be required to move the assets from the probate estate to the newly created testamentary trust. Certain trusts can be established and funded as soon the instrument is signed. Trusts can be structured to tier distributions, restrict distributions, authorize income only distributions to certain individuals, and provide protection against potential creditors of the beneficiaries.
- Tax Implications - Few States still have inheritance or estate tax liability. With the passage of the American Taxpayer Relief Act of 2012, the federal estate exemption amount increased to $5 million and continues to increase annually with inflation. As a result, concerns about inheritance tax liabilities are usually not a factor when considering estate plans.
Heather Niehoff is a legal assistant at Spalding | Law LLC in Bloomington, Indiana, where she works in probate and estate planning, as well personal injury and medical malpractice. Ms. Niehoff conducts legal and factual research, and client interviews. She prepares pleadings, memoranda, briefs, witness lists and exhibits. Ms. Niehoff is currently a part-time adjunct instructor at Ivy Tech Community College in Bloomington, Indiana, where she teaches beginning and intermediate algebra courses. She also is a frequent lecturer for the Institute for Paralegal Education. Ms. Niehoff earned her B.S. degree from Indiana State University.
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