Probate or Living Trust? Can Probate be Avoided?

Probate? The most estates go to probate. It doesn’t matter whether you have a will or skipped that important step in end-of-life planning. Either way, your heirs may need to go to court before your estate assets are disbursed.

The difference is that with a will, an executor you name will distribute assets according to your wishes. Without one, the court will designate an administrator who will divide your assets according to provisions of the law. You need a will or a living trust.

Avoiding probate. For those who want to avoid probate, there are several options to bypass the system. The first is to make heirs co-owners on bank accounts and other assets. In theory, this sounds good because heirs can simply remove the name of the deceased and then split the account balance without going to court. In reality, these setups can result in one heir legally running off with all the money. This can work if you only have one heir. But Beware.

Transfer on death provisions on deeds and accounts are another way people can avoid probate. The main risk with these provisions is someone dying out of order – such as a child preceding a parent. What’s more, if an asset is transferred to a minor, probate may have to be opened.

Rather than trying one of these options, One way to avoid probate is to set up a revocable trust(Living Trust) and transfer assets there. Upon death, the trust via successor trustee can then disburse assets to heirs without having to go to probate court first. This Living Trust is much more expensive than a will.

Probate litigation is the real problem. This is where family members sue in Probate Court because they don’t like the will or trust.

Don’t put your faith in a no-contest clause to the will. This language stipulates that anyone who legally challenges the will loses their bequest. This clause is easily sidestepped.

Communication from you may prevent family litigation from undoing all your hard work and your after death wishes. Tell the heirs what you want and why.

The Process of a Personal Injury Lawsuit

The Legal Process of a Lawsuit.

If you’ve been injured at no fault of your own, you may have already begun the process of negotiating a settlement of a personal injury lawsuit with the insurance company of the at-fault party. Ideally, you have the help of a skilled personal injury attorney – someone who understands the negotiating tactics of insurance companies and the personal injury claims process more broadly. Very often, insurance companies will try to low ball you at the outset, leading you to believe that their offer is fair.

The Benefits of Hiring a Personal Injury Attorney
It’s even better if you hire an attorney who has experience as a successful litigator. The insurance company will be more willing to offer a high settlement if the adjuster knows the case could be argued in court. They’ll usually try to keep away from litigation when possible because they don’t want to pay the associated fees.

Writing the Complaint
If your initial negotiations fail to produce adequate results, a skilled litigator will be filing a lawsuit, which can be a pretty complicated affair. First, your attorney will write up the initial complaint, which informs the involved parties of the time and place of the injury, the details of the injury and treatment, and the expected compensation for damages, which might include medical expenses, lost income or pain and suffering.

Filing the Complaint
Next, your attorney can file the complaint with the court. A seasoned attorney will understand the particularities of the filing process in your county, thus removing the burden of having to know the many deadlines and limitations.

After your attorney has filed the complaint, the defendant usually has to respond to the allegations, either accepting or denying the various points enumerated in the document. In many cases, defendants refuse to accept liability.

Statute of Limitations
Remember, there may be a statute of limitations associated with your claim. Your attorney should be able to inform you of the time limits to file your case. For this reason, it’s generally a good idea to retain an attorney sooner rather than later, so you don’t miss the boat on your compensation.

Once the complaint and summons have been served, both parties can initiate what is known as the discovery process, during which the defendant and plaintiff can gather pertinent evidence either supporting or refuting the claims. Evidence might include eyewitness and expert testimony, medical records, income statements, investigative reports, photos and any other documents that are relevant to the claims in question. Both parties may also have to submit depositions that narrate the events surrounding the injury.

Pretrial Settlement
In most cases, the claims are settled out-of-court. In fact, 95 percent of tort claims end in pretrial settlements, leaving a mere 5 percent to be argued in court. Settlements can occur in either mediated settings or by the attorney and the other side. Both the plaintiff and the defendant will most likely want to stay out of a proper trial due to the immense amount of resources that such an affair entails.

Arguing a Case
If your case does go to court, your lawyer will have to thoroughly prepare for trial, which is generally delivered before a jury. The defendant may choose to cut the trial short by offering a settlement. If not, the jury (or a trial judge) will issue a verdict, either in favor of the defendant or the plaintiff. If the jury finds in favor of the plaintiff, it will also determine the amount of compensation granted to the injured party. That compensation may or may not includes any court-related fees or costs such as jury fees, filing fees, etc.

It is always a good idea to have a knowledgeable attorney by your side. Without legal representation, it will be difficult to recover maximum compensation for your injuries, much less go through the rigmarole of filing a lawsuit.