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9305 North Lilley Road

Plymouth, MI  48170

734.927.5245

  • Acosta Law

3 Reasons You Should Avoid Probate

Probate court is an esoteric institution to be avoided at all costs. WHY ? Because it is one of the most misunderstood proceedings of the law.


Reason 1: Probate Puts the Government in Control

Estate planning with an expert attorney can give your family a speedy pass around the probate process! If you want total control over your assets and wishes while keeping the State of Michigan out of your business then you want to avoid probate. You must have a Trust within your Will to avoid probate, and working with an estate planning attorney is the only way to get this done for you and your family. What an amazing gift to give your loved ones and peace-of-mind to give to yourself!


Reason 2: The Probate Process Requires “Heirs” to Approve the Executor Appointment What, Exactly, is the Probate Process?

In a nutshell, the probate process guides the transfer of your estate after death according to your Will and State law. This process handles creditors, distributes assets to beneficiaries, and ensures other important matters are handled-like guardianship of children. Having a Will makes probate easier because you appoint an executor and can make your wishes known but it doesn’t necessarily mean they will be carried out exactly as you want. It depends on things like what you owe creditors and divorce settlements, among other things. You can avoid this legal hassle by having a Revocable Living Trust within or instead of a traditional Will. With this type of Trust you appoint a trustee who will execute the Trust after your death and carry out your wishes exactly as stated.


Executors vs. Trustees

The executor is NOT free to act on your behalf after your death unless he/ she has properly been appointed by the court. Unfortunately, this process cannot be accomplished as easily as we hoped. For instance, what if the executor (possibly your spouse) is incompetent/ mentally incapacitated, at the time of appointment; children now married and moved to another state; even worse estranged; kids might not agree. The executor cannot be appointed until all the heirs are located, have capacity and agree. In all these cases, additional cost and legal procedures are expended to get the will presented and the executor appointed.


Executors and trustees have similar roles-both can be trusted partners that you select to ensure your wishes are carried out after your death. An executor is responsible for representing your interests during probate; handling creditors, assets for beneficiaries or heirs, and other matters related to your estate. An executor is named in your Will or by the State of Michigan when there is no Will. A trustee is appointed by you and follows the instructions within your Trust exactly. I’m not saying you have to find a legal or financial expert to be your executor or trustee, but please find someone honest and willing to give their best for you.


Are Heirs & Beneficiaries the Same?

No, these words are often used interchangeably but there are key differences. A beneficiary is someone who benefits from the transfer of an asset usually by a Will or a Trust-they get your possessions. You choose these folks during estate planning! An heir, on the other hand, is a person the State of Michigan decides should inherit your assets when there is no Will or Trust.


Reason 3: Who's Plan Ensures Your Wishes Are Carried Out - You or the Government?

Everybody has a plan - it’s yours or the State’s. Short answer—the State of Michigan steps in. If you don’t have a Will or Trust, no one knows how you want things handled so the State gets involved through the court system and appoints an executor to handle everything. Who knows what choices this individual will make?! The probate process is similar to one with a Will, but it’s slow and your family probably won’t get as many of your assets. Many factors, such as how your property is defined and whether you are a parent and married or single determine who will inherit your assets and make important decisions. Putting YOU in the driver’s seat is why I’m passionate about estate planning and preparing your loved ones for a bright future!

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