Understanding Probate and Its Challenges

Probate is the legal process through which a deceased person's assets are distributed to heirs and beneficiaries. While it's a crucial mechanism for settling estates, it can be time-consuming, expensive, and subject to public record. In Massachusetts, most probate matters must remain open for at least one year after the date of death of the decedent in order to allow creditors to establish claims against the estate. Rhode Island has a six month statute of limitations for creditor claims which begins on the date of qualification of the fiduciary (the Personal Representative / Administrator.  The delays and costs associated with probate often lead individuals to seek alternatives to protect their assets and ensure a smoother transition of their property to their intended beneficiaries.

The Revocable Trust Advantage

A revocable trust, also known as a living trust, empowers you to retain control over your assets during your lifetime while facilitating a seamless transfer of those assets upon your passing. Here's how it works:

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1. Avoidance of Probate:

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• By placing your assets into a revocable trust, you effectively remove them from the probate process. This allows for a faster and more private distribution of your estate.

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2. Flexibility and Control:

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• The term "revocable" implies that you can modify or revoke the trust at any time during your lifetime. This flexibility ensures that you retain control over your assets and can adapt your estate plan to changing circumstances.

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3. Privacy Protection:

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• Unlike probate, which is a public process, a revocable trust is a private document. This means that details of your trust, specifically the distribution of assets, remain confidential (generally) and are not exposed to public scrutiny. Generally, the only publicly available information concerning a Revocable Trust is a Certificate or Memorandum of Trust which evidences the existence of the Trust, the initial Trustee, and the successor Trustees.

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4. Reduced Costs and Delays:

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• Probate often incurs significant court fees and legal expenses. By avoiding probate through a revocable trust, you can potentially reduce these costs, ensuring that more of your assets go directly to your beneficiaries.

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5. Your Trust Can Be an Effective "Guardianship Avoidance Mechanism": 

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• ​​ Revocable Trusts are generally established by a Settlor (the person who provides the property), to be managed by a Trustee, for the benefit of the Beneficiaries in accordance with the terms of the Trust that you set forth. Generally, you would serve as the Settlor, initial Trustee and lifetime Beneficiary of the Trust. In the event of your incapacitation or inability to serve as Trustee, your successor Trustee can step into your shoes for the purposes of managing the Trust for your benefit during your lifetime. This feature of a Revocable Trust, in conjunction with a properly drafted Health Care Proxy and Durable Power of Attorney can help eliminate the necessity to seek a guardianship / conservatorship someday.