We decide to meet at a local café to discuss whether or not you should set up a trust. The cats have asked to come along as they are concerned about what would happen to them on my death. They heard of a cat being sent to the animal shelter after its owner died, and they have no intention of going back there again. The cats and I have already ordered when you arrive with your dog, Bowser.
Bowser is proudly wearing his new collar. The cats look at him resentfully, recalling their lost profits. The two of you join us at our table. I begin to explain the difference between a will and a trust, and you ask, quite sensibly, “Why should I spend money on a trust? I won’t be around after I die.” “No, you won’t,” I say, “but those to whom you leave your estate will be around, and they will have to clean up your mess if you don’t do some estate planning.“
At the word, “mess,” Bowser cowers as if he has heard that word before in anger. You stroke him gently to calm him and look lovingly into his eyes. Bowser wags his tail. The cats stop eating for a moment to take all of this in. They are forming a different impression of you and Bowser and look at the two of you, curiously.
I explain, “Unless your estate falls within the small estate limits, a probate is required if you own anything at your death that does not pass by survivorship or by beneficiary designation.” “What are the small estate limits?” you ask. “Real property with a gross value of $200,000 or less and personal property with a gross value of $75,000 or less,” I say. Now the cats are really interested. They want to know how much you and Bowser are worth.
“What’s the big deal about probate?” you ask. I reply that probate is time consuming and expensive. You ask, “Why should a probate be required if I have a will?” I explain that a will does not give your personal representative the authority to distribute assets from your estate until the probate court issues a judgment authorizing him/her to do so. “A trust authorizes the trustee to distribute the trust assets after your death without probate,” I say.
The cats have stopped eating entirely. They are worried about whether or not I have a trust, and, if so, who the trustee is and what the terms of the trust are and whether they will be allowed to stay in our home after my death. Bowser does not seem concerned. Your gently stroking his neck and ears has reassured him that everything is going to be all right.
Allen Drescher has practice law in Ashland and Southern Oregon since 1973. His practice areas include estate planning, real estate, business law and Elder Law.
© Allen Drescher