Attorney Michael Crosby Talks About Probate Court
ALAN: Welcome to “Legal Matters”… an informational and news call-in show devoted to legal topics of interest to Stateline viewers… I’m your host Alan Jones and my first guest is attorney Michael Crosby with the Crosby Law Firm…
Our opening statement for this episode of legal matters… is what a person faces when a loved one has passed on and now their final affairs need to be completed in Probate Court…
… a nd in the second segment we’ll continue our popular “you want to know” question and answer session devoted to questions posed by you the viewer via telephone calls & social media…
again the number is 815-397-2006 … and lawyers are standing by right now to take your confidential call…
ALAN: Welcome to the show, Michael. Today’s segment is on what a person who has heard about setting up a trust to pass their property at the time of their death and not go to probate court. I know that the Crosby Law Firm represents many people who have set up a trust to make things quicker and easier at their passing, so let’s dive in…
MICHAEL: Last month we discussed what to do to make it through probate court with the least amount of pain and cost at someone’s passing, now let’s talk about how a setting up a trust in your lifetime can bypass the probate court when it happens.
QUESTION 1:
ALAN: What is a trust and how does it pass property outside of the probate court when a loved one passes on?
MICHAEL: A trust is an entity set up by someone during their lifetime to own their property as setting up a corporation would and be able to transfer property privately after their passing. Think of how Ford Motor Company has survived Henry Ford and continues to do business. A trust can continue after you’ve passed away and distribute the property you placed in it. Being a “living entity” the trust owns the property and can transfer it as you could were you alive. The property is not property of an estate so the probate court has no jurisdiction over it.
QUESTION 2:
ALAN: How do you set up a trust and how do you make it own property?
MICHAEL: The person who wants to set up the trust is called the settlor or grantor and they prepare a trust agreement where the trust is given a name; such as “The John Smith Trust”, a person to manage the trust’s property; called a trustee, is named, usually the settlor him or herself, a successor or back up trustee is named to be in place when the settlor passes away, and direction to distribute the property to the named beneficiaries. Usually the first beneficiary is the settlor. The trust can only own the property you designate it to have and you need to transfer the property into the name of the trust as if you were transferring the property to another person.
QUESTION 3:
ALAN: How do you transfer property to the trust?
MICHAEL: The property is put in the name of the trust by the same means used to transfer it to a living person, your house is deeded to the trust, your automobile has at transfer of title at the Secretary of State’s Office, you inform your bank and other financial institutions the change in ownership so your checking account for example in not the trust’s checking account. You pay the real estate taxes in your home in the name of the trust, and do all business related to the property you place in the trust as trustee not as yourself.
QUESTION 4:
ALAN: I’ve heard that having trust can be confusing and complicated, is that true?
MICHAEL: That’s a common worry; once the trust is in place it is similar to running a business; you have the trust accounts to take care of trust assets. But remember, as settlor you are also a beneficiary. And as trustee your job is to take care of beneficiaries. As Trustee you can pay your own expenses but remember to always do it in the name of the trust so there is no question of it being a valid entity to own and transfer property. It can make the process of winding up your affairs at the time of your passing a matter of weeks rather than the minimum time for a probate case to be open of six months.
ALAN: Welcome back… it’s time for our rapid fire, question and answer segment called “you want to know”.
In an effort to protect viewer confidentiality, please understand that we are only using first names and we may alter the location and the nature of the question somewhat.
QUESTION 1:
ALAN: our first question comes from Nicole in Winnebago…my daughter was in an auto accident, she went to the emergency room from scene of the accident, she’s back to work but with the doctor having only on limited duty work. She received a letter from the other driver’s insurance company, their offer covers the damage for her car and her emergency room bill. What should she do now?
MICHAEL: Your daughter’s property damage and personal injury from the collision need to be completely evaluated and a formal request for a proper settlement to make her whole needs to be made. Have your daughter please call our offices for a free initial consultation to discuss the process to negotiate or litigate her problem.
QUESTION 2:
ALAN: This next question comes from Michael from Loves Park…I lost my job earlier this year and my car was repossessed when I couldn’t keep up with the payments. Can the lender collect the whole amount of the money under the loan since the lender sold the car before the end of the length of the contract?
MICHAEL: The lender has to credit the account for the amount they receive for the sale of the car and credit you for any unearned interest charges as the contract ended early. The lender is supposed to send you a statement of the transaction and there will likely be some charges for the sale of the car added after your credits. This is a critical time for you to seek an attorney’s help to make sure you pay no more than you are required to.
QUESTION 3:
ALAN: The next question comes from Maurice in Rockford…My brother and I just got word our grandfather passed away in Christian County and he had a farm there. We are just two of his seven grandchildren; what needs to be done so my brother and I can get our portions of the farm?
MICHAEL: You and your brother are among your grandfather’s heirs at law if he died leaving no will. If he left a will there may a more specific distribution. Having the situation investigated and the law researched based on the facts disclosed by the investigation leading to a choice of courses of action would help you and your brother make an informed decision on which course of action to take to receive any portion of your grandfather’s estate you are entitled to.
QUESTION 4:
ALAN: This next question comes from Kim from Rockton…I purchased a TV set less than a year ago, it stopped working. I contacted the store where I bought it and they referred me to the manufacturer. The manufacturer had me send them the TV for repair. It’s been six months and no word on the return or my TV or a refund of my money…What can I do to get a working TV set or my money back?
MICHAEL: You have rights under the Consumer Fraud Act and the Uniform Commercial Code which provide remedies for claims like yours including revoking acceptance of the TV and a restitution of your money. We need you to come to our offices and we can craft a demand to the manufacturer and get you the value you’re entitled to.
QUESTION 5:
ALAN: Our final question comes from Dave in Oregon…I was driving and got stopped. I had my license but I didn’t have my insurance card. I got a ticket for not having insurance…What can I do about this ticket?
MICHAEL: We need to go to your appearance with you and inform the State’s Attorney you had valid coverage by showing them your insurance card.
