Most people think of estate planning as organizing their affairs so things will pass the way they wish when they die. That is certainly a large part of estate planning. Another very important part of your plan can involve making sure that certain wishes are implemented while you are alive. Probate is a court process designed for the administration and distribution of the estates of people who have died. Often, one of the goals of estate planning is the elimination or reduction of the need for probate. Dorfman Law Office can help you with estate planning and probate.
ESTATE PLANNING
An estate plan can be simple, or it may involve multiple documents and significant organization. What will work best for a particular individual or family depends on their specific circumstances. At a minimum, you should have a will in order to plan for the distribution of any money or property you leave behind. As part of your plan, you can also designate who should handle your affairs if you become incapacitated. This can be accomplished through the use of a “Durable Power of Attorney”. If you would like to express your desires regarding end of life medical care, you can do that as well. This is done through an “Advanced Health Care Directive”. Many people believe they must put their assets in a trust in order to have an adequate estate plan. That is not always the case. While a trust can avoid probate, the tax advantages of trusts have been eliminated for the great majority of people. Sometimes it is not a good idea to avoid probate. There are also other methods to provide for property passing without probate. In your legal consultation, you should discuss whether a trust is a good idea for your particular circumstances.
PROBATE
“Probating” an estate means going through a court proceeding which results in the distribution of the property left behind by someone who has died. The court appoints a “personal representative” to oversee the administration of the estate. Depending on the circumstances, the personal representative can be called an Executor or an Administrator. While the probate proceeding is active, the personal representative is subject to supervision by the court. They gather all the estate property, and pay the debts and legitimate claims presented against the estate. They make sure necessary tax returns are filed and taxes paid. If there is a will, the estate is distributed in accordance with the will. If there is no will, or the will is not valid, the estate is distributed according to the laws of “intestate succession”. A personal representative is entitled to fees at the conclusion of the probate, but may waive all or part of the fees if they wish.
Probate courts also deal with some issues not involving estates of deceased persons. For example, when a person is incapable of attending to their own affairs, the court can appoint someone to handle the affairs and make decisions for the person. This is called a “conservatorship”. Probate courts also handle “guardianships” of minors who need an adult appointed to handle their personal or financial affairs.