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Senior couple discussing probate

Your estate plan can help you avoid living probate

by Legacy Plan
July 8, 2016

Avoiding the probate process upon death, with its possibility of time delays, expenses and loss of privacy is one goal that drives many people to create an estate plan. However, a comprehensive estate plan can accomplish that and so much more, because there is more to complete estate planning than just having a plan for dealing with probate (or avoiding it). A thorough estate plan can also provide the necessary documentation needed to avoid, or minimizing the chances of, having to deal with a guardian and/or conservator, and ensure that you are in control both in life and after death.

Many people, when they speak of "avoiding probate," are referring to the probate procedures that occur after you die. However, an estate plan that is comprehensive enough to help you avoid "living probate" — the proceedings that can occur in a probate court during your lifetime — can also provide you and your loved ones immense benefits. With a proper plan for minimizing the chances of going through living probate, you can save your loved ones not only time and money, but also stress and anguish, while ensuring that you are in control, even after you are no longer able to speak for yourself. In one recent case from Florida, a man's estate plan's thoroughness, including its inclusion of advance directive documents, proved vital in thwarting an effort to have a court-ordered guardianship created.

At some point in his life, Burton Adelman made the decision to create an estate plan. The man's plan wisely addressed more than just what objectives he wanted carried out after his death. The plan also addressed the issue of living probate. The documents in the man's estate plan covered living probate by specifying that his ex-wife, Ruby Adelman, was to serve as his attorney-in-fact, as his health care surrogate and as his trustee.

Some time later, one of the man's grandnieces went to court asking the trial judge to appoint a professional guardian over the man. In some states, like Florida, the court must make two determinations before the judge can appoint a guardian. First, the court must conclude that the person over whom the guardianship would be appointed is, in fact, mentally incompetent. However, it does not stop there. The court must also analyze the specifics of the case and determine whether or not a "less-restrictive alternative" to guardianship exists.

In Adelman's case, although he was deemed incompetent, his estate plan offered the court precisely the sort of "less-restrictive alternative" the law contemplated. The estate plan named the ex-wife as the person the man wanted to manage all of his affairs, both financial and personal, in the event that he could not make decisions for himself. The ex-wife was able and willing to assume these responsibilities. Because the man's plan offered a seamless scheme for handling the decision-making process in the event of his mental incapacity, guardianship was unnecessary in his case.

Estate planning is important for many reasons because a thorough estate plan can accomplish so many things for you. A complete estate plan can not only give your loved ones directions regarding your preferences and goals after you die, it can also provide essential instruction for how you want your affairs handled while you are still alive but unable to make those decisions for yourself.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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