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If you have a trust, do you still need a will?

Recent media coverage has focused on the details of Joan Rivers’ will. Since a will most go through probate and the details of a probate proceeding are generally open to the public, juicy tidbits about the estate, such as its estimated value of $150 million, have been widely circulated. 

As an attorney that focuses on estate planning knows, much of that attention could have been avoided with the selection of trusts. Unlike wills, trusts generally bypass the probate process. That, in turn, shields the details of an estate from the public eye.

To be fair, Rivers’ estate also included a living trust. Both the will and the trust documents were signed in November 2011. Readers may question why Rivers had both of these estate-planning instruments. One reason could be property that was overlooked and/or acquired subsequent to the creation of the trust. A trust includes only property that was specifically transferred to it in writing. To the extent there is leftover or unaccounted property, it must go through probate. 

However, not all wills are the same. For example, a pour-over will can specify that any left over property be poured into the trust. If an individual took care to title most of his or her major assets in the name of the trust, only a few smaller assets may be left over at the time of passing. In such event, the estate may qualify for an expedited probate procedure for smaller estates, a type of summary probate.  In Florida, the two types of probate are called formal and summary administration. Summary administration may be available to estates valued under $75,000. 

Source: USA Today, “Joan Rivers' will mentions dogs, charities,” Ann Oldenburg, Dec. 10, 2014

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