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Q: Do wills always have to be probated? What about trusts?

A: No, not all wills are probated. In fact, a lot of wills are never probated, although I would argue that most of them should be.

Now, when you say probated, I assume that you mean when a will is presented for probate, a personal representative is appointed and an estate is open. If that is the case, an estate plan can easily be established where it is unnecessary to open a probate estate.

Remember that generally speaking, only "probate assets" are subject to the terms of the will. Probate assets are assets that the decedent owned in his name alone without beneficiary designations. If the asset is jointly owned or contains beneficiary designations such as Payable on Death (POD) or Transfer on Death (TOD), the assets are not probate assets.

One of the purposes of probate is to determine who receives the property of the decedent. If the account is jointly owned, we already know that the surviving joint owner owns the property at the time of death. Same thing goes for a CD that has a POD designation or a parcel of real estate that has TOD designation. Ownership in those cases is generally not an issue. We know who owns the property as a matter of law.

Now, don't get me wrong, there is always an exception to the rule. However, 99 percent of the time, ownership is determined without the need for probate.

What that means is by using joint ownership and beneficiary designations, there may not be a need to open an estate and thus no need to probate the will. However, even when it is not necessary to probate the will because probate is unnecessary, I still like to present the will for probate, but ask that a personal representative not be appointed and no estate opened.

This process is called spreading the will for record, and what it does is preserve the will. Wills generally need to be presented for probate within three years of the date of death of the maker. If not, it is very difficult to get a will into probate.

By spreading the will, it preserves the will in the event an asset is discovered more than three years following death. This is especially important when the beneficiaries of the will are not the same as the family members found under the intestate statutes, such as in the case of a pour over will, where the trust receives all of the property under the will.

Spreading the will makes sure that the trust estate plan will be carried out.

Finally, trusts are almost never presented for probate. It is possible to docket a trust when it is necessary for an interpretation of a trust provision, or when a trustee isn't complying with the terms of the trust.

However, docketing a trust is pretty rare and goes against one of the main benefits that revocable grantor trusts offer: probate avoidance.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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