Some readers of this New York estate and long-term care planning legal blog may perceive a contradiction in the world of wills and probate. On one hand, it is often advocated that individuals should create and execute wills so that their testamentary wishes are enacted. However, they are also advised to find ways of avoiding the probate process. Since a will is handled in probate, it seems as though it may be impossible to fulfill both of these important end-of-life planning goals.
To better understand this apparent legal conundrum, readers are asked to remember just what wills do. They offer information about the intentions of their creators as to how those individuals wanted their property distributed upon their deaths. Not all property can be probated since it is subject to its own distribution rules. Therefore, probate only handles the property is eligible and all other property may be rightfully kept out of its realm of authority.
To better illustrate this point, readers are asked to consider an estate in which the decedent created a living trust. Living trusts benefit their creators during their lifetimes and then immediately become the property of beneficiaries when those decedents pass on. Since the property in the trust is not that of the decedent but rather that of the trust, it is not the decedent's to pass on and it therefore does not have to be probated.
For property that does not have another method of distribution and that must be managed in a will, probate exists to smooth out any issues that may arise. Attorneys that work in the estate planning field can help their clients find the right balance of how to use wills and probate to accomplish their testamentary planning desires.