Have you ever wondered what will happen to your belongings after death? Typically the answer is Probate.
Probate is a Court proceeding that takes place after one dies. Probate can be a lengthy and involved process. An effective Estate Plan developed by the attorneys at Waller & Co. can help avoid a complex Probate process. It includes:
- proving in court that a deceased person’s will is valid;
- having an executor to administer and distribute your assets and property appointed by the court;
- identifying and inventorying the deceased’s assets and property;
- having the assets and property appraised;
- paying debts and taxes, and protecting family and friends from creditor claims to the extent possible within the laws; and
- distributing the assets and properties left over as the will (or the court, if there is no will) directs.
A family should hire an attorney to address the above complexities and formalities of Probate. Waller & Co. has represented hundreds of individuals and families in Probate court since our inception. Our attorneys are uniquely skilled to represent clients through the Probate process. Estate planning, tax matters, business decisions, and litigation issues all appear during the Probate process. Given our knowledge and experience in every one of those areas, Waller & Co. offers its Probate clients value added service.
Here is a general overview of working with Waller & Co. during Probate:
- An initial meeting occurs and the Probate process is thoroughly explained to the client. We discuss the deceased’s financial and family circumstances, and client’s questions and concerns are addressed.
- We advise our clients on what information and documentation of the deceased is needed to initiate the Probate process.
- Waller & Co. prepares the documents required by Probate Court, which include some of the following:
- Petition for Letters of Administration
- Affidavit of Heirship
- Copy of Will
- Oath and Bond
- Order for Appointment
- Notice to Heirs, etc.
- The death certificate, Will (if any), and the appropriate documents are filed with the Court and a Probate case is initiated
- All parties required to be notified under the law are notified
- A Court date is provided and, if no issues are present, our attorneys will have the Will officially validated and an Executor or Representative appointed by a Judge
- If issues are present, such as contesting family members, creditors of the Estate, etc., Waller & Co. works vigorously to address these matters in the most efficient and effective way for our client and the Estate..
- The appointed Executor or Representative pays of any obligations or creditors of the deceased’s estate.
- The appointed Executor or Representative fulfills his or her obligations to report to the Court the assets of the Estate
- Waller & Co. presents the details and plan of distribution of assets to the Court for approval
- Waller & Co. advises the Court to close the Probate case.
Here are some of the answers to our clients’ most frequent questions regarding Probate:
How does probate work? Probate occurs with or without a will but is more beneficial if the deceased has a valid will. This is why working with an attorney to prepare a proper Estate Plan is essential. When one passes without a will (e.g. Intestate), the court decides who receives the property regardless of what the deceased would have wished. In addition, passing without a will and proper Estate Plan requires a significant amount of extra hours your attorney must put in to finish the Probate process, which means added costs to your heirs. With a will and proper Estate Plan however, the deceased controls who receives their property, allowing provision for family and friends of their choosing, and lower attorney’s fees and court costs.
What occurs during probate? Shortly after the deceased’s death, the estate opens, and the will is probated for the court to prove its validity. If valid, the personal representative (court appointed if not listed in the will or if there is no will) or the executor (designated in the will) gathers the deceased’s property and assets and outstanding income. Once such is gathered, the personal administrator or executor pays outstanding debts submitted within the time deadline under the law. Outstanding estate taxes and the appropriate tax forms must also be paid and filed. The property and assets left over are then distributed to those listed in the will or according to the Judge’s order if no will. Once all assets and property are transferred, the probate process is finished and the estate is closed.
What are the costs involved in Probate? If the deceased died with a proper will and Estate Plan, assets and property are generally distributed by the personal representative or the executor without court supervision or approval (e.g. informal probate). This prevents the high costs of attorney fees and court costs incurred in formal probate, which is only used when there exists no will or the will is challenged, or held invalid.
How do I avoid formal probate and the unnecessary costs and problems it may bring my family? To avoid formal probate, as well as will contests and invalidity, partake in Estate Planning. Waller & Co. can draft the proper legal documents required to avoid intestacy, minimize the likelihood of will contests and invalidity, and the high costs associated with formal probate.
Is Probate used for anything else? Probate is useful when there are minor children or disabled person. In the event of the parents’ death, the court appoints a guardian to care for the children until majority age. As the legal guardian, this person has all the rights and responsibilities as a parent. A proper will and Estate Plan allows the deceased to control who is the guardian and assures their children are well loved and taken care of. Without a will and proper Estate Plan, however, the court appoints a guardian, which can be the closest blood relative, whom the deceased may not have chosen. In the event of a disabled person, a guardian of is also appointed under court supervision.
What should you do now? Contact Waller & Co. to help guide you through the probate process or to prepare your Estate Plan to ensure that your family and friends are cared for. Remember with Estate Planning, you control to whom and how your property and assets are transferred, as well as arrange for the care of minor children or the disabled. A proper Estate Plan will make the probate process easy for your family!