Probate 101
Helpful Information Regarding Probate and Estate Planning
Probate refers to the method in which your estate is administered and processed through the legal system after you die. It has been defined as, "The court supervised process of identifying and gathering a person's assets after their death, paying all of their debts, and distributing the balance to the rightful heirs or beneficiaries."
Whether or not you have a will, your estate will be probated. You should be aware of how the probate process works because it will impact your family. While some aspects of the probate process are straightforward, other aspects are extremely complicated. Every state has different laws; check out our Find an Attorney page and learn about the relevant laws and probate process in your county/state!
If you are looking for information related to probate, estate administration, estate planning and related topics, you have come to the right place. This site is meant to be a helpful resource to you; it can guide you through this process and the materials on our directory are intended to clear up your questions and alleviate your concerns. With a better understanding of these matters, you have the ability to make informed choices regarding your family's future and the protection of your assets and interests before, during and after probate. Below, we have highlighted several of the key topics covered by this website – you can get more information by using our directory to find a probate attorney near you.
According to a Harris interactive survey, only 35% of people have executed a last will and less have the proper powers of attorney in place. Only 24% of people under the age of 35 have a last will or a living will. While 77% of those over the age of 55 who participated in the survey had at least one document in place, that still means that one-fourth of this category had not created an estate plan. Most Americans have not taken the necessary steps simply because they are ignorant or confused about the process. Check out the links below for the information you need to make responsible choices in this area today:
Estate Planning
Asset Protection
Asset protection is a key part of estate planning. It can help ensure that your hard-earned money is not needlessly lost to estate taxes and that the assets you wish to pass on to your loved ones actually reach them.
Estate Planning
Estate planning may include drafting a will and setting up trusts, mitigating estate taxes and taking other actions that will not only protect one's assets but that will ensure their loved ones are taken care of when they are gone. Planning for the future is crucial, regardless of your age, health or the assets that you may have.
Planning for Estate Taxes
Depending on the value of one's estate, it may be subject to estate taxes. The amount will vary depending on the state. Estate planning may include working out a detailed strategy that will minimize estate taxes so beneficiaries can actually obtain the inheritance they were meant to receive.
Estate Planning Attorney
Hiring a Lawyer
Finding the right lawyer for your particular case can be a complicated undertaking. Particularly because probate is a legally complex and emotionally charged process, you need a lawyer who can address your unique needs.
Power of Attorney
A power of attorney enables another to act on one's behalf in certain situations, such as if the individual is seriously injured in an accident, falls ill or is otherwise incapacitated. By setting up a power of attorney, one can feel confident that his or her interests will be properly protected even if the unexpected occurs.
Probate
Avoiding Probate
There are particular situations where you may be able to avoid probate, meaning you may be able to avoid the time, expense and stress that can be involved in these proceedings. Whether you can avoid probate will depend on where you live, the value of the estate and other factors.
Estate Administration
Estate administration is a process that occurs when a person dies. Their estate must be appraised by gathering and determining the value of all assets and property. Creditors must be paid. The remaining assets will then be distributed amongst beneficiaries.
Probate
What is involved in probate? Will your loved one's estate need to go through the probate process? You may have a number of questions related to probate, and the best way to get accurate answers based upon your particular situation is by discussing the matter with an attorney in your area.
Probate FAQ
Getting accurate and helpful answers to your questions about probate may make all the difference in your ability to make the right choices about your case or even hiring a probate attorney in the first place. We have compiled common questions and answers to help you get the information you need.
Probate Litigation
When a dispute arises during probate, this may result in litigation. Probate litigation may arise from a will contest or a claim that the executor of the estate is failing to uphold his or her duties. Legal counsel is all the more important in these situations, as the potential exists for the case to be drawn out, the will to be declared invalid or a beneficiary's right to assets to be revoked.
The Probate Process
The probate process essentially involves determining the validity of a will and then executing the distribution of assets according to the will. Appraising assets, paying creditors and distributing assets may all be involved. Specific proceedings will vary depending on the jurisdiction.
Trusts
Living Trust
A living trust is a type of trust that is created while you are still alive. With a living trust, the property placed in this trust will avoid probate and will therefore ensure the proper and swift distribution of assets when you pass on.
Setting up Trusts
Setting up one or more trusts may prove an invaluable part of the estate planning process. A trust can protect one's assets and can also help ensure that property or assets pass on to a beneficiary without suffering significant losses due to estate taxes.
Trust Administration
Though a trust avoids probate, there are still particular steps that must be taken to administer the trust. This may include addressing taxes, paying creditors, informing beneficiaries and distributing assets according to trust provisions.
Trust Litigation
A claim or lawsuit may arise pertaining to a trust and whether it is legally enforceable, whether it was obtained under undue influence, and whether it is being properly managed. An attorney can assist a trustee or beneficiary in legal proceedings related to a trust.
Wills
Last Will and Testament
A last will and testament is a legal document that allows a person to essentially outline what will happen with property and assets upon their death. The person will name an individual or individuals to manage the estate and will specify how property and assets will be distributed.
When There is No Will
What happens when a person dies without leaving behind a last will and testament? In these cases, state intestacy laws may apply. These proceedings are more likely to be complicated, particularly if numerous heirs claim that they have the right to receive assets or property.
Will Contests
What happens when the validity of a will is challenged? These proceedings are typically referred to as will contests and may involve allegations that a will was created or signed while the testator was under the influence of another person or was mentally incapacitated. The will itself may be considered invalid if it is not properly signed or witnessed. Multiple wills may further complicate matters.
Wills and Trusts
Wills and trusts are closely related to probate and estate planning. Whether these need to be set up or are contested during probate, it is helpful to have a skilled lawyer who can protect one's interests.
Probate.com: A Resource for You!
While no one likes to think about such dismal subjects as death, the unfortunate reality is that tragedy can strike at any time and being unprepared can force your family to bear the consequences. All 50 states and the District of Columbia have enacted laws governing estate planning and probate, and our directory can help familiarize you with the current laws in your state. All states have the following codes "Decedents' Estates," "Trust and Fiduciaries," "Estate Administration," and the "Uniform Probate Court." Peruse our site and take the necessary steps today to ensure that your loved ones are protected and your wishes are honored!
If you would like to learn more about probate and the many topics related to this important subject, click here to find a probate lawyer near you.