Our legal system is broken. What follows in this series are specific, practical suggestions to improve our legal system locally and across the nation. Voltaire observed that it is not so important to come up with a new idea; it is more important to think of a good idea---again. The 1970's produced small revolutions in the law such as no-fault divorce and no-fault recovery for auto accidents. It is time to reexamine our legal system afresh, jettison that which just serves to make lawyers rich and improve that which is just. This series is called "Theories for Legal Improvement--and for Revolution".
1. Probate Court Should be Abolished -- The biggest financial scam inflicted on the innocent public by our legal system is the living trust or more accurately called The Revocable Trust. It is a financial bonanza for lawyers and does nothing for Mr. and Mrs. John Q. Citizen in ordering their affairs. Why? Because it should not be necessary to do them in the first place. A regular will should suffice.
Probate is a remnant of the past that serves no purpose. When someone dies, the size of their assets puts them into one of three categories:
- Small Estate--If one's estate is worth less than about $150,000 there is a simple filing people can do themselves and that is the end of the matter. It can be done by the oldest child, a close family member or whoever is appointed in a simple will by the person that died.
- Middle Class America--If the person that died is worth between $150,000 to 2 million most lawyers recommend a living trust to avoid probate. Avoid what? Probate. Probate only accomplishes two things. It transfers title to the heirs and provides judicial oversight if needed. IT IS NEVER (ALMOST NEVER) NEEDED. Title can be passed by title companies without lawyers. Millions of middle class suckers are paying lawyers from $500 to $3,000 to do a living trust that accomplishes nothing. A regular will should cost no more that $200. State legislatures across the nation should abolish probate for all estates less than 2 million dollars and in most instances it is not even needed for large estates.
- Wealthy people need estate planning. Middle class people need a simple will. It is that simple.
The net result is that people are overpaying for a living trust when all that should be necessary is a regular will. The elaborate legal paperwork for a probate estate is a total waste of time and money and that is why lawyers started using expensive living trusts to avoid probate. The only people that benefit are the lawyers. Unfortunately, the probate matter is often left for last in a lawyer's office when the calendar demands attention to more pressing matters that cannot wait. Probate administration can always wait. Moreover, a lawyer's fee bears no relationship to any benefit to those left behind. In short, neither probate nor a living trust should be necessary for middle class citizens if probate was eliminated for all except large, complex estates.
WHAT CAN BE DONE? -- It is up to the state legislature to eliminate probate for the middle class. Each citizen who is contemplating a visit to the local lawyer's office to do their will should also write to your local legislator at the same time. You can educate yourself on the issue by obtaining a brochure from your local bar association on three subjects; a simple will, probate, and a revocable living trust (living trust). Virtually, all bar associations and all local lawyers have these brochures. Then write your local legislator a polite, one-page letter advising them you have had it with paying lawyers too much for a living trust when all that is needed is a simple will Then you should ask that legislator to join in the fight to abolish probate for regular folks with medium size assets.
This is the first of a series of thirty (30) suggestions for legal revolution. We welcome your ideas and feedback. One person can effect change.
(Some of these ideas can be found in Legal Breakdown, Nolo Press, Ways To Fix Our Legal System--Make Law Fair, Affordable and Open to All)
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