Living Probate

If there is not some accident that kills you suddenly, you are likely to be sick and/or disabled for some time before you pass on. If have not properly prepared, your spouse or children will have to go to Court to get Guardianship and Conservatorship for you. This is called a "Living Probate."

A Will can not help with Living Probate because a will does not take effect until you pass on. However, appropriate Revocable Living Trust planning can avoid Living Probate altogether.

Though Living Probate can often be accomplished without too much delay, the person appointed may not take care of things quite the way you want. They will act under the direction of the probate court and report to the probate court on a regular basis. Further, often the disabled person, their children, and the social agencies who become involved do not agree about what should be done with an individual’s estate. Sometimes, they do not even agree whether an individual is competent to care for an estate. In such cases living probate can be a lengthy and expensive undertaking.

It is prudent to plan for your disability ahead of time. This is accomplished by including a "Disability Trustee" in your trust and leaving them with instructions on how to take care of you and yours. You will also define how it is to be determined if you are no longer able to care for your trust on your own. If you want to make sure that someone takes you to a game at the stadium at least once per year (whether you know it or not), you simply leave your Disability Trustee the appropriate instructions.

It is also advisable to do additional legal Incapacity Planning including such things as powers of attorney.

With appropriate legal planning, you can avoid the necessity of Living Probate and maintain better control over how you and your estate will be cared for during any disability you suffer prior to death.