Everything You Need To Know About Probate

The term probate can be used in a few different ways.  One way to think of probate is as the act of presenting a will to court officers for filing; often this is stated as to probate a will.  The other popular way to think of probate is as the method that an estate is overseen and routed through the courts after your passing.

The basic premise of probate it to transfer the estate that has been left behind in a fashion that is systematic and managed.  The estate must go through an exact procedure when being dispersed.  Before your inheritance can be divided amongst beneficiaries the administrator must see that all debts and taxes are paid on behalf of your estate.  Probate should be seen as a working guideline to transfer the estate on your behalf in accordance to your directions.

Probate applies to the death of any individual with an estate of any size, with or without a will in place.  If a will is in place upon your passing then it will lay down the ground rules for how and to whom your remaining estate is transferred.  Without a will in place the court will point an administrator to determine who in fact will receive the remains of your estate.

The process of probate is pretty basic when broken down.  There are two main steps involved: paying back debts that are owed on your behalf and transferring assets to the appropriate beneficiaries.

A probate court will oversee the process of probate.  Probate courts are state courts not federal and therefore the process may vary a bit from state to state but basically follow these basic four steps.

1)      A personal representative is assigned or appointed and sworn in.

2)      Heirs, creditors and the public are notified of your passing.

3)      The estate is inventoried.

4)      Estate is distributed including the payment of all outstanding debts.

The process is fairly simple.  Complications can arise but in most cases probate is a pretty straightforward procedure.

In probate it is important to understand that there is a difference between probate property and non-probate property.  In general assets that you alone own are probate assets while those owned jointly with others are often considered non-probate assets.  Non-probate assets will automatically pass on to the joint owner upon your death.  Another example of a non-probate asset is one that passes on to a named beneficiary automatically such as life insurance.

The Law Office of Sean J. Nichols is dedicated to assisting clients throughout legal issues that come with aging including: elder law, estate planning, probate law and more.  Check out the Law Office of Sean J. Nichols at http://www.seanjnichols.com to contact an estate attorney today.

The Basics In Estate Planning

No matter who you are it is probable that you have an estate.  Even if you don’t think you do, you most likely do.  An estate is made up of all of the things you own on your own including: your car, home, checking & saving accounts, investments, life insurance, furniture and personal possession.  No matter how large or small you have an estate and all estate has one thing in common, you can’t take it with you when are gone.

We are all going to eventually die that fact is inevitable.  Many people say they don’t care how things are distributed after they are gone but in reality that is most likely untrue as well.  There are certain people that you will want to have certain personal items.  In order to be sure that your wishes are carried out it is crucial that you provide written instructions stating who you want to receive your estate, what you want them to receive and when they should receive it.

This is known as an estate plan.  Creating an estate plan where your estate is distributed in the most efficient manner possible helps avoid additional tax, fees and court expenses.  An estate plan is created in advance of your passing and is used to name who receives your estate after you die.  A good estate plan will also include:

• Instructions in an estate plan should not only include your property with value but also instructions on your personal values. A written document stating your values on religions, education, hard work, holiday traditions and what matters most to you.
• Detailed instructions should be included on how you hope to be cared for if you should become disabled before you die. What type of care do you hope to be given during this period of time between when you become disabled and the end of your life?
• Your estate plan should name a guardian and financial manager for children under the age of eighteen. Who do you want to care for them?  Do you want the guardian of your children to also be in charge of your financial assets?
• How do you want to distribute money to loved ones that may not be able to manage money or may need financial assets later in life?
• State the instructions for family members needing special care in order not to disrupt government benefits that are being received.
• Include details on life insurance and how it is to provide for your family at the time of your death. Written details on disability insurance that replaces your income if you are unable to work due to illness or injury before death. Also, include long term care insurance instructions to ensure you can pay for care in cases of extended sickness and injury.
• Estate plans need to also contain information on how your business should be transferred upon your retirement, disability or death.
• An estate plan should establish a transfer of assets that minimizes legal fees, court costs and works to minimize the amount of taxes paid.

Proper estate planning is a continual process.  Continue to update the estate plan as events in your life change.  Set up a regular yearly appointment with your estate planning attorney to review and update the plan to ensure that your family is covered when you inevitably pass away.

The Law Office of Sean J. Nichols is dedicated to assisting clients throughout legal issues that come with aging including: elder law, estate planning, probate law and more.  Check out the Law Office of Sean J. Nichols at http://www.seanjnichols.com to contact an estate attorney today.

Elder Law Attorney’s Help Clients Avoid Probate

It’s true that as a society we work to avoid planning for the unpleasant inevitable, death.  It is easier to avoid the topic and go on about life living then to face the fact head on that eventually we will pass on and our families will continue to live without us.  However, if we plan ahead for what will happen to your property when you are no longer around it will save a great deal of time and money for those who you are leaving behind.  With a detailed estate plan in place you will ensure that your assets are dispersed accordingly.

Probate is the process that your assets will go through in observance of the terms set forth in your will often referred to as the probate litigation process.  This process is managed by your state’s probate court.  When assets are located outside of the state in which you live additional proceedings will take place in those states.  Assets that are jointly owned such as retirement benefits, life insurance proceeds, jointly owned property and bank account are considered non-probate assets.

Most people believe having a will in place will be enough to avoid probate but in reality this is not the case.  Any and all assets that you personally own even if intending to pass them on to your beneficiaries are subject to probate.  The process of probate is time consuming and tedious.  The rules that each state follows vary, rarely is probate proceeded with in a timely manner.  The process can take anywhere between three months to three years to resolve themselves depending on the state and size of your estate.  This is an exceptionally long time for your loved ones to wait to finalize your passing, especially if they need the income from the estate to settle your affairs in full.

The process of probate in itself is costly with various fees.  Of course the larger your estate the more potential there is for expense.  Smaller estates with properties outside of your state can become quite costly to settle.  Taking this all into consideration there are steps that individuals can take to avoid the probate process. Having the following in place can help your loved ones to avoid the often lengthy process of probate.

1)      Have a revocable living trust in place.

2)      Convert personal accounts and individual retirement accounts to pay on death accounts.

3)      Establish joint ownership for any and all property through any one of the following: joint tenancy, tenancy by the entirety and community property.

4)      Distribute property to loved ones before you pass away.  Gifts proceeding death do not undergo probate when you die.

5)      Benefit from small estate laws and provisions.  Reputable, local estate planning attorneys can help a great deal with this.

The Law Office of Sean J. Nichols is dedicated to assisting clients throughout legal issues that come with aging including: elder law, estate planning, probate law and more.  Check out the Law Office of Sean J. Nichols at http://www.seanjnichols.com to contact an estate attorney today.