Estate & Probate

If you are currently in a situation where you’ll be dealing with a probate or estate related matter, or if you think that you will be in this kind of situation in the near future, it is important that you hire a law firm knows the ins and outs of probate law.

Probate law has to do with the handling of an “estate” when someone, such as a family member or other loved one, passes away. The estate is basically the extent of what assets (i.e. property and money) the deceased had at the time of death. The goal of the probate process is to make sure that these assets are distributed to the “heirs,” or the descendants, and in some situations, to regular creditors of the deceased. When you find yourself in a situation where you’ll be dealing with probate law, it’s a good idea to already have in mind what you are going to need to do.

So what exactly is Probate?

Probate is a legal process that begins with a “petition” (a request) to open the estate and name a personal representative who is responsible for the administration of the deceased’s property. The next step is locating and managing the estate assets (gathering up insurance policy documents, securing the real estate, managing the check book, paying certain expenses, etc.) and determining what current creditors the deceased may have had. Then the personal representative can pay the debt and distribute the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.

While on one hand, this may sound simple, probate law and the handling of estates is in fact a complex system, which presents you with multiple requirements and tasks to be performed by the personal representative, an experienced attorney and a tax consultant. For example, an estate including only a single house and single bank account that has been left to a single beneficiary will probably be a far easier and quicker process to deal with than an estate containing multiple houses that are located in various states, and that are left to multiple beneficiaries. This becomes especially difficult if an estate includes leaving assets to a minor.

Another significant portion of probate law is the ‘Last Will and Testament” of a person, commonly referred to as the Will. Your Will is a legal document outlining the appointment of your executor and the distribution of your assets to your heirs, family, friends and charities. Your Will can be tailored to be very simplistic or to be very specific and detailed. If you do not have a Will at the time of your death, then your estate will be viewed as “intestate”, meaning without a Will, and then there are statutory provisions the probate court will use to determine who gets what from your estate. Regardless of how big or small your estate may be, it is always wise to have a Will in place, otherwise, you are leaving it up to someone else to decide what happens to your estate assets.
Along with drafting a Will, there are three other commonly used documents associated with the Will. They are the Living Will, Power of Attorney (POA), and the Medical Power of Attorney (MPOA).

A Living Will is a document stating what your wishes are should you become terminally ill, incapacitated, or are in permanently unconscious state. You can state your preference for the use of continuing life support and/or declining resuscitation of any kind.
Power of Attorney is a document that permits a person of your choosing to “step into your shoes” and act on your behalf in your contractual matters. You essentially are authorizing another person to handle your financial affairs, sign contracts, sell property, and handle your business or legal affairs when you are unable to do those things yourself.

A Durable Power of Attorney for Healthcare is a document that permits a person of your choosing to your healthcare decisions for you when you are unable to speak for yourself.

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