Philip C. Rosen Wills and Probate Law Blog on Lawyers.com

From a Ft. Lauderdale FL probate lawyer

Q: How can a Revocable Living Trust avoid probate?

A: I will admit that we generate a great deal of income from probating estates, and sometimes probate is unavoidable.  However, we can help our clients avoid the time and expense caused by probate.  By creating a revocable living trust and funding that trust (I will explain that in a minute), your assets will not be subject to probate and your trustee can distribute assets upon your death without the court’s oversight.

Here is how it works: The trust describes who gets your assets, appoints you as trustee and appoints a trustee who takes over when you die.  No need to worry - we help you transfer all of your real property into the trust.  Don’t be concerned about losing your homestead exemption - we make sure you keep it.  We will also give you detailed instructions on how to transfer into the trust all of your bank accounts, investments accounts, etc. 

The most important thing to remember is that you never lose control of your assets because you are the trustee of your trust.  You can do whatever you would have done as if you owned the property in your own name.  Nothing changes except for how your assets are titled, and the successor trustee (appointed by you) doesn’t take over until you die or become incapacitated.

The biggest mistake clients make is that they do not fully fund their trust.  I will explain by way of a short story:

A client was referred to us who had recently fallen ill.  His estate was worth approximately $750,000.00 and he heard from a friend that he should do a revocable living trust.  After meeting with him, we agreed that a revocable living trust was the way to go.  We drafted his Will, revocable living trust and deed transferring his homestead property into the trust and he signed his documents a few days after our meeting.  We gave him specific instructions on how to re-title his bank and investment accounts (which can only be done by the account owner) and offered to help facilitate the process.

Two weeks later and like we always do, we sent a follow up letter and called to make sure he had re-titled his accounts.  At that time, unfortunately, we learned that the client had passed away just days ago.  After attending the funeral, we inquired with his brother as to whether there was anything we could do to help.  He mentioned that he knew some documents had been signed recently but would prefer if we made sure his estate was taken care of since he couldn’t really think about it.
We made our inquiries and, to our dismay, we learned that the client had not followed through and his assets (aside from the real property that was transferred with the deed I drafted) were still titled in his personal name.  The result: we had to probate the client’s estate and his beneficiaries had to wait for over five months to get their inheritances.  In addition, the estate had to pay over $15,000 in expenses between attorney’s fees, personal representative fees and miscellaneous expenses.

The moral of the story is that if you create a trust but do not fund it, your estate will not avoid probate, subjecting your family to unnecessary expenses and more time spent grieving and waiting for closure.