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Usefulness of living trusts extends beyond avoiding probate

Probate in Ohio is the process by which a will is recognized and a personal representative or executor is appointed to pay debts, distribute assets and otherwise administer the decedent's estate. Many states have laws allowing for simplified probate procedures, which can make the process less expensive and more efficient, depending on the facts of the case.

Part of the focus of estate planning law has thus shifted from planning to avoid probate to planning to avoid the issues that commonly complicate the probate process. Many types of assets, including the proceeds of retirement plans or life insurance policies, will typically pass to beneficiaries without the need of probate. Jointly held bank accounts and real property owned with rights of survivorship will also usually avoid probate. Because of the movement to simplify the process and the number of assets that may avoid it altogether, some have argued against the usefulness of probate avoidance instruments, such as living trusts, in estate planning.

Assets placed into a living trust will pass to the designated beneficiaries without going through probate. As noted above, some types of assets may avoid probate by default, but others will likely be probated unless there is a trust or other instrument. One typical arrangement is a living trust naming beneficiaries along with a pour-over will, which contributes the decedent's assets to the trust upon their death.

The primary advantage of a living trust may be the management of assets rather than the avoidance of probate. In the event that the trust maker falls ill or becomes disabled, a living trust may be useful to ensure proper care and minimize the possibility of financial abuse. An attorney with experience in estate planning law may be able to answer specific questions for interested parties or help to simplify estate administration. An attorney may be able to assist by examining the facts of the case and drafting a will, living trust or other instrument as part of a comprehensive estate plan.

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