Sparing my kids probate

Hello everyone, I am just finishing up the Acilliary Probate in Dunn County ND. What is the simplest way to spare my kids from the probate thing I was told to do a trust for them on the oil rights. Is there an easier way what about a TOD would that work with oil rights. Not all states allow TOD’s but ND and NM do it suremakes things simpler thats for sure can I do that. I am thankful for this awesome web site everyone is so helpful. Thanks

Simplest is seldom the best way. Discuss the mineral interests and your other assets with an experienced trust and estate attorney in your state of residence to develop a plan to avoid ancillary probate,implement asset protection planning, and to avoid estate and inheritances in case the exemptions are reduced.

1 Like

Visit with an estate planning attorney in your area. Since you have kids (instead of a kid) a trust may be more appropriate than a transfer on death deed. This is because TOD often have non-existent (or awkward) contingent beneficiary options. Your home state really does not need to know about oil and gas, just make sure that a North Dakota attorney prepares the deed into the trust.

1 Like

You should check with an estate planning lawyer in your state of residence. I am not a lawyer, so I am currently working with a firm to accomplish exactly what you are asking - avoidance of probate expense and delay of distribution to my heirs. My residence is Delaware, it is my understanding from my estate lawyer that what matters is your state of residence not the state where the asset is located. In DE the county probate tax is 1.75% of the probated assets. The cost of setting up my estate plan is much less than the tax will be. Your mileage may vary, of course. I would look for an estate planning lawyer that offers fixed feed services that you are told up front. An ethical estate planner should never be asking for some % of the estate.

By moving asset ownership into a revocable living trust, they avoid probate expense and delay. I retain control as trustee. The trust converts to irrevocable upon my death. Distribution is then by that stipulated in the trust (like in a will) and carried out by the contingent trustee - who is designated in advance.

One other point I have learned, the law changed in most states in 2010, requiring more specific stipulations and clear assignment on the contingent trustee. If you already have such a trust and it is older than 2010, you should review it to ensure it is still viable in your state of residence.

1 Like

My ND attorney is in the process of getting it recorded right now. I may have them do the trust part I will speak with him.

Thanks

Yes I was told to get a revocable living trust, the attorney that is doing my Auxiliary Probate should be able to do it for me. What did they charge you to do the Trust? The probate is almost completeI want to spare my kiddos this unnecessary cost & stress my goodness. Thanks for the infomation~

The attorney in your state of domicile should do the revocable trust and pour-over Will. Because each individual’s situation is different in terms of family, assets, and estate planning goals and objectives, there is no standard fee and one size does not fit all in terms of trust structure. For example for asset protection and divorce protection, many parents will create a trust that will last for the life of a child and grant a special power of appointment or a general power of appointment to the child to dispose of the trust assets at the child’s death and, in default of appointment, the property would pass to the child’s descendants, per stirpes, subject to any applicable trust provisions. You should have your estate planning done by an attorney who specializes in estate planning who has a strong tax background rather than a general practitioner. Some states such as Texas have attorneys who are board certified in estate planning and probate law by a board of legal specialization.

Kaia,

As others have mentioned it depends on what you ask for and the amount of work needed to complete your estate plan. We needed to update our powers of attorney, advance health directives, will (convert to pour-over), revocable living trust, and asset protection trust (irrevocable). If you have your affairs generally in order, then the firm doesn’t have to spend time to chase down details and/or fix things.

After providing detail in advance of our situation and assets, we sat down with a paralegal (that cost $200) to discuss our needs and desires. Based on that, we were given a detailed quote of what it would cost. You should expect thousands not hundreds; I might shop around if it’s $10k. However, the probate tax on our home alone was much more than what our essentially complete estate plan will cost.

Good luck,

Greg

$10k if fairly costly unless there is significant estate tax, asset protection or Medicaid/VA planning, blended family. Expect much less if it is a fairly straight forward plan. All to surviving spouse then to kids in equal shares. Be sure to have an attorney licensed in the the state where the minerals are located to prepare any mineral deeds to the trust.

ND does TOD Deeds, contact ND Attorney to do it. Its the cheapest easiest way to avoid probate and the kids creditors.

TOD conveying outright to a child will not avoid the child’s creditors. To avoid a child’s creditors create an irrevocable trust for child with a spendthrift provision, a discretionary distribution provision, and flexibility to remove and replace trustees.

Sclausen is correct. Gifts outright will not protect the children from creditor claims. Also, if a child is on SSI or Medicaid outright ownership can have issues. Visit with an attorney in your state for the best course forward.