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Panelists: wills, trusts and probate depend on assets and family circumstances
Summary
On-air attorneys told callers that whether to use a will or trust depends on property ownership, asset size and children, and explained probate, intestate succession and the possibility of guardianship or conservatorship for incapacitated heirs.
Missoula — Dial-A-Lawyer panelists told listeners deciding between a will and a trust depends on how property is titled, the size of an estate and whether the testator has minor children; they also outlined probate and the procedures if someone dies without a will.
Ralph Kerscher advised that “one has to really consider the assets that you may have,” whether property is held in joint tenancy or solely, and the total number of assets. He noted that a trust “may be appropriate [to] eliminate the need for probate” but that trusts can require tax filings with state and federal agencies depending on estate size. Panelists agreed that parents who want to designate guardians for minor children should have a will.
On probate and intestate succession, an attendee asked what happens when a parent dies without a will. Kerscher explained that when property is not held in joint tenancy, judicial probate proceedings are typically required to convey property to heirs and that Montana’s intestacy rules (uniform probate code procedures mentioned on-air) would generally pass the estate to the children. If an heir appears incapacitated, the panel explained it may be necessary to seek a guardianship or conservatorship to protect that person’s interests.
Panelists recommended consulting an attorney who handles probate to begin proceedings and to determine whether additional steps — such as a conservatorship — are necessary depending on the heir’s competency. The on-air remarks were general guidance only and not individualized legal advice.
