Probate

What is Probate?

Probate is a system whereby the Court dispenses and disposes of your property in the event of your death. If you die intestate, or without a will, the law decides which of your relatives receive a portion , or all, of your estate. If you have a valid will, you decide how your property is divided. You can also name the person you want to administer your estate. You can also name the person you want to raise your children. Caveat- If there is a surviving parent, the law presumes they should have custody of any surviving children.

Why see a lawyer? I represented the beneficiaries of an estate valued at over a Million dollars. The deceased used a fill in the blank form, filled it in, and signed it in front of two witnesses and a notary. The estate stayed in Probate Court for years. The deceased failed to mention that he had a niece from whom he was estranged. The niece’s lawyer claimed the deceased was incompetent when he made the will as he didn’t know “the objects of his bounty.” The true beneficiaries ended up settling the niece’s claim for a substantial amount of the estate. A lawyer could have avoided this problem with careful drafting.

In terms of controlling the disposition of your assets, the most popular tool to avoid probate taxes is to form a trust and transfer assets to the Trust. You can decide how and when assets will be liquidated. You can decide to designate funds for a particular purpose such as expenses for college.

The Probate Court will also appoint a conservator of your assets in the event you become incompetent. You can choose who you want to manage your finances if you have a valid Durable Power of Attorney. If you have a valid Durable Power of Attorney for Health Care Advocate your end of life issues can be decided by the person you designate. Without it you can have a Terry Schiavo situation where family members disagree and the issue becomes tied up in Probate Court for months, if not years. It pays to plan. You can have piece of mind if you properly plan for the future.