What is a Living Probate?

Most people, when they hear the word probate, think it is only something that happens when a person dies. Unfortunately, probate can also happen while a person is alive. It is often referred to as a Living Probate. The legal term is a conservatorship or guardianship proceeding. If you become mentally disabled before you die, the probate court will appoint someone to take control of all of your assets and personal affairs. These court-appointed agents must file strict annual accountings with the court. The entire procedure is expensive, time-consuming, and often humiliating.

Does Joint Tenancy avoid a Living Probate?

No. Each joint tenant is required to sign documents on all major transactions involving joint property. If one owner is mentally disabled and incapable of handling financial matters, everything will have to wait until the probate court takes control. The court, in effect, becomes a joint owner and will continue to have a voice in managing the jointly-owned property until the disabled owner either recovers or passes away.

Does a Will avoid a Living Probate?

No. A will only takes effect at the time of the person's death. It has no control over the events during a person's lifetime.

Does a Living Trust avoid a Living Probate?

Yes. One of the most important benefits of a Living Trust is that it is designed to protect you while you are alive. Every well-drafted Living Trust contains a section setting forth your instructions in the event you should become legally incapacitated. You can plan in advance to look after illness, disability, and even old age. The trustees you choose are bound by law to follow your instructions during these difficult times. With a Living Trust, there will be no need for expensive Ahelp from the probate court, probate lawyers or conservators.