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Should Probate be avoided in general?  No.  

Probate is a specific court procedural process to finish the affairs of the deceased and pass property to heirs free of liens and encumbrances.  In Montana, probate is required by law for an estate that is valued at over $50,000.00.

Does a Trust replace the need for Probate?  No.  

A Trust requires administration and fees just like a probate and is often more expensive than probate and without well established laws to manage disputes.

Why is a Trust believed to be a better alternative to Probate by some?  

Because at one time they were in the 1990s, but the Estate or Death tax laws have change to make them almost obsolete!  In the old days, most Trusts were created costing several thousands of up front loaded expensive fees with the hope to avoid the Estate or Death Tax year later, and it worked often.  But, Trustee management fees by financial institutions were and are ongoing at as high as 3% of the Trust value per year. Park $1,000,000.00 in a Trust and the parking fee per year is $30,000.00 to simply mail out a monthly statement!

Short general history of Estate or Death Tax: 

An estate valued at $300,000.00 or more was taxed at about 35% to 45% in the 1990s.  In the early 2000s, only an estate valued over $1,000,000.00 was taxed and then the exemption rose again to $5,000,000.00 and more recently went to $10,000,000.00!  What does this mean? In general, a single person would need to have an estate over $10,000,000.00 to trigger the tax, and a married couple would need to have over a total of $20,000,000.00 in combined assets before the Estate or Death tax apply.  This means that probably 99.7% of all Americans have zero exposure to Estate or Death tax. Therefore, Trusts are almost obsolete except for a few specific special needs situations that arise for children, adult with special needs, legacy real estate and fortunate people that have a high net worth.

Should I do Probate myself as the Personal Representative of the Estate?  No,

unless you are skilled and confident enough to perform a do-it-yourself automotive engine over-haul or an open-heart surgery.  This is a bad DIY project that you will end up hiring an attorney to fix your mistakes and finish.

A General List of Informal Probate documents needed depending on the individual case and client is as follows:

 

  1. Death Certificate of John/Jane Doe

  2. Will of John/Jane Doe

  3. Application for Informal Probate of Will and Appointment of Personal Representative

  4. Acknowledgment of Fiduciary Duty

  5. Order of Informal Probate of Will and Appointment of Personal Representation

  6. Letters

  7. Notice and Information to Heirs and Devisees

  8. Notice to Creditors

  9. Inventory of Assets

  10. Notice of Filing Affidavit of Publication

  11. Personal Representatives Sworn Statement To Close Estate.

  12. Order to Close – required by some Judges.