Estate Planning Newsletter

• Two Kinds of Durable Powers of Attorney
  If you become incapacitated, who is supposed to make decisions for you about the management of your property or your health care? A durable power of attorney allows someone you designate to act on your behalf. It is usually included as... Read more.
• Fraudulently Transferred Property & Constructive Trusts
  A constructive trust is a remedy imposed by a court when a person has wrongfully attained property in an inappropriate way. The court will undo the transaction and order that title to the property go to the rightful... Read more.
• Inheritance as Income for Purposes of Child Support
  The federal Child Support Enforcement Act of 1984 requires each state to develop its own set of systematic guidelines for calculating awards of child support. Generally, state child support guidelines are based on the parents’... Read more.
• Protecting Inheritance Rights Under Adoption by Estoppel
  In general terms, the judicial doctrine of “equitable adoption” recognizes a valid parent-child relationship in the absence of a formal adoption procedure, holding a person who has acted like a child’s parent for a... Read more.

• Lisa Marie Presley leaves behind a music fortune and a family dispute
• Non-profits and Heirs of Jewish Couple Who Escaped Nazis 85 Years Ago Sue Guggenheim for Picasso Painting
• Can You Deduct Estate Planning Fees From Your Tax Bill?
• Estate planning mistakes made by celebrities so you can avoid them yourself
• 6 joyful steps for end-of-life planning

What is Probate?

Probate, a Latin term meaning “to prove the will,” is a court-supervised process that settles a person’s affairs after death.

To ensure that the decedent’s final matters and wishes are handled correctly and without bias, most states have probate courts (or special departments of the court) to oversee the settling of estates. Probate may occur even if there is no will.

Court Appointees

Usually the court will appoint one of 2 types of persons to oversee the decedent’s final affairs:

• Executor – Typically the person, bank or trust company named in a will to administer the estate
• Administrator – Typically appointed if the decedent died without a will (intestate)

On behalf of the decedent, the probate court makes certain that:

• Any final bills and expenses are paid, including any taxes owed
• Any assets remaining are distributed to the beneficiaries named in a will
• If there was no will, any assets remaining are distributed to the correct heirs under the laws of intestate succession

What Qualifies for Probate?

The deceased person’s estate must have assets (such as real estate, bank accounts, securities) before probate occurs. Each state sets its own requirements on when probate is necessary, usually according to the value of an estate’s assets.

In some states, the assets must be at least $10,000 to go through probate, or modified probate. However, other states allow assets of up to $100,000 before probate occurs.

These assets would not include any real or personal property of the decedent’s that others receive directly through joint tenancy, trusts, life insurance benefits, right of survivorship or other means.

Reasons to Avoid Probate

The primary disadvantages of probate are:

• The time it takes for an estate to be administered through the probate process
  (which can span anywhere from several months to several years)
• The cost involved in the probate process (which can include fees for the court, estate administrator, attorney and taxes)

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