Remember, the purpose of a revocable trust is to avoid probate and following fact patterns make it a necessity to use a revocable trust.
- Owning property outside of New York State
If you own property outside of New York State in your individual name, a proceeding must be commenced in the other state to transfer or sell that property. This means, more time and more legal fees.
- You have no relationship with your next of kin
Regardless of whether you have named your next of kin as beneficiaries of your estate, the probate process in New York requires that they be contacted to sign certain papers. If they refuse, or their whereabouts are unknown, this can greatly complicate your probate proceeding.
- You have disabled or minor beneficiaries or heirs
A Court will generally appoint a guardian ad litem to represent the interests of a disabled or minor person. Working with a guardian ad litem could significantly delay the administration of your estate.
- You are creating trusts for the lifetimes of beneficiaries
It is very common to create trusts for minor children. It is becoming more common to create these trusts for the lifetime of the child for asset protection purposes. If you create these trusts through a probate proceeding, you will be required to go back to Court every time there is a change, such as a change in trustee.
Notwithstanding the above fact patterns, my experience over the recent few years is that our interaction with the Court is becoming increasingly more and more complicated from an administrative perspective. This results is time delays, legal fees and anxiety. We are recommending, on a more frequent basis, revocable trusts.
