Blog   Tagged ‘probate court’

Estate planning and how to avoid probate

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probate and wills

In a recent blog post, we discussed what might happen if you pass away without a will and what might happen with a will. When you pass away owning property in your sole name (regardless of if you have a will or not), your assets might need to go through probate in order for your heirs to inherit your property. Having a will does not avoid probate—it just determines who will receive your property. If you die owning property in your sole name without a will, your estate still passes through probate—but who receives your property will typically be determined under the laws of the state where your primary residence is at your date of death (the “intestacy laws”).

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Probate is a court process to provide for an organized way of winding up a deceased person’s affairs. During this process, a personal representative or executor is appointed by the Probate Court to supervise the collection of your probate assets, payment of your final bills and taxes, and distribution of your assets according to either your will or the intestacy laws. This may or may not be what you intend and might be more expensive than if you made other plans in advance.

Avoiding Probate

There are ways to distribute your property at your death according to your wishes without going through probate. While the techniques might vary from state to state, these typically include:

  • titling property jointly with another (“joint tenants with rights of survivorship”)
  • creating a beneficiary deed for real estate
  • adding a “transfer on death” or “pay on death” designation to assets, such as bank or investment accounts, or by beneficiary designation for assets such as your retirement plan, IRA or life insurance
  • creating a “revocable” or “living” trust and retitling your assets in the name of your trust

The trustee holds the legal title to the property owned in the revocable trust, not you as owner. The trust property is held by the trustee for your benefit during your lifetime.  You can choose to serve as your own trustee as long as you are able. At your death, the property held in the trust is distributed by the successor trustee of the trust to those family members, friends or charities you name in your trust agreement, similar to the instructions you can leave in your will.

A Living Trust

There are many advantages to creating a living trust:

  • Control: You can be your own trustee during your lifetime and then you name a successor trustee (such as a bank) to serve after you cannot or do not wish to serve.
  • Flexibility: You can typically change the terms of the trust at any time while you are living. If you become disabled, your successor trustee can step in and pay your bills, manage your investments and allow you to avoid “living probate” where otherwise a court appointed conservator might be needed to manage your affairs. You can create trusts for your minor children or grandchildren to be created after your death, hold assets in further trust for disabled or disadvantaged beneficiaries and even create trusts for charities.
  • Privacy: The terms of the trust and its assets and values are typically private, unlike a probate proceeding, which is a public matter where your will (if any) and list of assets are filed with the court and open to inspection by anyone.

Your living trust would be part of your overall estate plan, which would likely include a “pour over will” (just in case assets weren’t retitled into your trust’s name at your death), powers of attorney for financial and healthcare decisions and a living will.


Be sure to consult with an experienced estate planning attorney to discuss what estate plan is right for you under the circumstances.  We also recommend discussing your options with a wealth advisor who can assist you with your financial goals, working together with your attorney and other trusted advisors.



UMB is not providing you with any legal or tax advice.  You need to consult with your own legal and tax advisors to determine what estate plan is best for you and how the laws of the state governing your estate might affect you given your specific circumstances.


When you click links marked with the “‡” symbol, you will leave UMB’s website and go to websites that are not controlled by or affiliated with UMB. We have provided these links for your convenience. However, we do not endorse or guarantee any products or services you may view on other sites. Other websites may not follow the same privacy policies and security procedures that UMB does, so please review their policies and procedures carefully.

Ms. Teson is a Senior Vice President and Private Wealth Management’s Senior Legal Counsel at UMB Bank. She is responsible for managing Private Wealth Management’s Legal, Fiduciary Tax and Real Estate and Unique Asset teams. She joined UMB in 1992 and has been a licensed attorney for 32 years. She is also a Certified Financial Planner.

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Estate Planning: What will your legacy be?

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You don’t have to be a millionaire to set up an estate plan. Have you thought about passing down a family heirloom to one of your children? Maybe you’ve considered leaving money to a charity that benefits public arts funding. When you’ve spent your life acquiring assets and building wealth through hard work, it’s only natural to want some control over what happens to them after you’re gone. The best way do this is to have a sound estate plan.

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As you form your estate plan, keep in mind several key ideas.

  • Pick your heirs

    Whether you want to pay for your grandchildren’s college education or give a ring that’s been in your family for generations to your oldest daughter, decide who you want to provide for and how.

  • Provide direction

    If you have specific ideas about how you want your assets to be used when you’re gone, make sure that those ideas are clear in your estate plan. You may want to start a family foundation that supports children’s literacy or structure a trust that holds money you’ve left for your children until they reach a certain age. Whatever special objectives you have, clearly outline them in your estate plan to ensure they’re accomplished.

  • Protect your children

    If you have young children, it’s important to select a guardian to care for them and include this in your will. This may seem like an impossible task, but only you should decide who is best suited for the job. Be sure to talk to them about it before you put them in your will. Having a conversation with them ahead of time will prevent surprises and ensure they are up to the responsibility. Once they agree, make sure it’s documented. If you name a guardian in your will, the probate court will be more likely to honor your wishes. If you don’t list a guardian in your will, the court will select one without guidance.

  • Prevent legal hiccups

    Generally, assets owned by one person are subject to probate after they have passed. Probate is a name for the legal process conducted to determine the authenticity of a will and to distribute the assets of an estate. Probate involves legal costs and causes delays in the distribution process.

To avoid probate and minimize taxes on your assets, you can place part or all of them in a trust. One option is a “self declaration of trust,” where you are responsible for the assets while you are still alive (initial trustee) and a professional third party is responsible for distributing the assets after you are gone (successor trustee). Another option is to name the professional third-party as the trustee while you are still alive.

Many people tend to put off estate planning. But it is an important process for you to consider. It’s an opportunity to take control of future planning for yourself and your beneficiaries. It can be a difficult, but if successfully completed, this seemingly impossible task becomes an efficient and well-executed plan.


Content is for informational purposes only and should not be taken as legal advice.  Please consult an attorney for assistance related to estate plans and your particular situation.

When you click links marked with the “‡” symbol, you will leave UMB’s website and go to websites that are not controlled by or affiliated with UMB. We have provided these links for your convenience. However, we do not endorse or guarantee any products or services you may view on other sites. Other websites may not follow the same privacy policies and security procedures that UMB does, so please review their policies and procedures carefully.

Mr. Tjaden serves as executive vice president and chief fiduciary officer. He is responsible for supervising all fiduciary activities and staff for UMB, including offices in Kansas City, St. Louis, Denver, Phoenix and Salina, as well as the Trust Company in South Dakota. Mr. Tjaden oversees Personal Trust, Custody, Foundations, Trust Legal and Business Support Services within the Private Wealth Management division. He joined UMB in 1977. Mr. Tjaden earned a bachelor’s degree in business administration and political science from Kansas State University. He also earned a Juris Doctor and a master’s in business administration from the University of Kansas. Additionally, Mr. Tjaden is a Certified Trust and Financial Advisor and a member of the Estate Planning Society, the Johnson County Bar Association and the Kansas Bar Association.

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