What is probate?
Everyone seems to know they want to avoid probate, but most aren’t quite sure what that means or why. Probate is the area of law that handles wills and trusts, guardianships of minors, and conservatorships of adults who can’t care for themselves.
If someone dies without an estate plan and has assets that are valued at over $184,500, then family or friends must go through a court probate process to get authority to access that person’s assets and distribute them. This process can be very time consuming, costly, and stressful.
What many people don’t realize is that having a Will alone does not avoid this process.
What if I am named as someone’s executor?
A common misconception is that if you are named as the executor in someone’s will, you automatically begin serving in that role when they die. However, if you are named as the executor, you must file a petition with the court to actually be appointed in that role and to get the legal authority to access the decedent’s assets, sell property, and even forward the mail. There are many procedural requirements that go along with just the initial petition, including sending formal notice to certain government entities, all beneficiaries and other people mentioned in the Will, and publishing notice in the newspaper.
Once appointed, an executor has many duties and responsibilities throughout the probate process and must file different documents with the court throughout. It is best to have an attorney guide you through this process, as you can be held responsible if you do not fulfill your duties properly.
How long does a probate case take?
It is difficult to know exactly how long it will take for your case to go through the probate process, since it depends on external factors, such as the response times of creditors, the assets in the estate, and the schedule of the court.
Generally, a straightforward probate matter can take about 18 months from start to finish.
How long does a probate case take?
It is difficult to know exactly how long it will take for your case to go through the probate process, since it depends on external factors, such as the response times of creditors, the assets in the estate, and the schedule of the court.
Generally, a straightforward probate matter can take about 18 months from start to finish.
Do I need a trust as part of my estate plan?
The best way to avoid probate is to put your assets on a trust. Generally, you will serve as the trustee of the trust and have complete control over your assets. You can designate successor trustees to manage the trust assets for your benefit if you are unable to continue to act as trustee. The successor trustee will also make sure that your assets are distributed the way you wish after you die.
Some people think trusts are only for very wealthy people. As long as the value of your assets is greater than $184,500, your estate will be subject to probate if the assets are not in a trust.
What if I am named as someone’s trustee?
If you are the successor trustee of someone’s trust, you should contact a lawyer to instruct you on the procedural requirements you must follow to administer the trust. The duties and responsibilities of a trustee vary greatly and depend on the complexity of the trust and the assets involved. However, you will generally not need court involvement for any reason, and the successor trustee can begin acting almost immediately. In a straightforward trust, assets can be distributed within a few weeks.
Who should I choose to be my executor or trustee?
You should think carefully about who you entrust to handle your affairs if you become incapacitated or die. The person who will be administering your trust or probate estate should be someone responsible, organized, and available. Do not assume you need to name your children if they are not a good fit for the job! You can name a sibling, a neighbor, or trusted friends. Remember – they will have an attorney to advise them on what they must do, you just need to make sure your trustee or executor can follow directions in a timely manner and act professionally.
How do I choose a guardian for my children?
If you have minor children, you want to make sure that if something happens to you, they will be cared for by the people you choose. To do this, you can nominate guardians of the person and the estate for your children in your Will.
What documents should I have in my Estate Plan?
The standard estate planning package includes Wills, a Trust, Powers of Attorney, Advance Health Care Directives, and other documents that work together to ensure all bases are covered to protect you and your family.
If you have ownership interests in a business, patents or trademarks, or other special assets, there are additional documents that will protect those interests, too.
What if I am a beneficiary and the trustee is not doing what they should?
First and foremost, get a copy of the trust. Trusts are self-governing documents, so it is essential for a lawyer to be able to see what the trust says so they can help you evaluate your claim that a trustee is breaching their fiduciary duty to you as a beneficiary. Your remedy depends on the extent and effect of a trustee’s actions. It is generally advisable to ask the trustee for information to start, and then you can file an action in court if you have evidence that the trustee is breaching their duty.
