Anyone who has watched television shows or movies could not help but have seen a plot line around the fate of a person’s assets on her death. Plots often center around a deceased’s wishes either being carried out or not being carried out, fights between potential recipients of a deceased’s assets, and disputes about decisions for an incapacitated individual. Unfortunately, these plots happen in real life everyday often leaving loved ones without means of support or care. Wills and trusts can cut out some of the uncertain and painful drama associated with life. Most people can benefit from having both wills and trusts. This article introduces wills and trusts. (click here to continue reading in pdf)
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Probate law covers the legal methods of transferring a deceased property. This court-supervised process is designed to sort out the transfer of a person's property upon death.
Usually, people leave property to anyone they wish, and make such designations in their will. In certain situations, depending on the relationship to the decedent and the laws of the state, the court may override the decedent's wishes. For example, a spouse is entitled to a certain amount of property, but creditors may have a claim on the property of the estate as well. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate.
The probate process itself has costs that are usually paid out of estate assets. These costs include:
- Fees of the personal representative
- Attorneys' fees
- Court costs
There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate process may be contested or uncontested.
The majority of probated estates are uncontested. The basic process of probating an estate includes:
- Collecting all probate property of the decedent
- Paying all debts, claims and taxes owed by the estate
- Collecting all rights to income, dividends, etc.
- Settling any disputes
- Distributing or transferring the remaining property to the heirs
Many contested issues generally arise in the probate process because someone close to the decedent is dissatisfied. Common arguments used to contest probate include that the deceased may have been influenced in making gifts, the decedent had insufficient mental capacity at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will.
The probate system, however, exists for the protection of all the parties involved.