Probate is a term that many people have heard from time to time, but most individuals really do not know what it is all about. In this post, we will explain the basics you need to know to understand the process of estate planning.
You have definitely heard of criminal court, traffic court, family court, etc. Probate is another type of court that presides over matters that are of interest to estate planning and elder law attorneys.
If you use a last will to state your final wishes, the will would be admitted to probate. The executor would complete the administration tasks, and it would be done under the supervision of the probate court.
Why can’t the executor act without any type of court involvement?
When someone passes away, they may have outstanding debts. Probate protects the creditors while the assets in the estate are being distributed to the heirs.
During probate, creditors are given an opportunity to come forward seeking satisfaction before the estate is closed by the court. In most jurisdictions, notices must be publicly posted, and creditors can access this information.
The probate court is charged with the responsibility of determining the validity of the will. If someone were to come forward to contest the will, that person can argue the case while the court is probating the estate.
As you can see, these are two logical and important functions of the probate court. It is possible to proactively take steps to avoid probate when you plan your estate, and some people choose to go this route.
For the most part, they avoid probate because of the time consumption. Inheritances cannot be completely distributed until this process has run its course.
The probate court also handles intestacy cases. When someone dies without any type of estate planning documents at all, the court will appoint a personal representative to act as the administrator.
In an intestacy case, when the estate is finally closed by the court, the assets are distributed using the intestate succession laws of the state.
Another matter that is handled by the court is guardianship. When you hear the term, you may automatically think about a child in need of a guardian. This is one type of guardianship, but the probate court also presides over adult guardianship matters.
As elder law attorneys, we often counsel people about the looming threat of incapacity. A very significant percentage of elders become unable to make sound decisions at some point in time.
If you do nothing to prepare for this eventuality and you become unable to handle your own affairs, the court could be petitioned to appoint a guardian to act on your behalf.
You can take the matter into your own hands in advance if you execute legal documents called durable powers of attorney. With a durable power of attorney for property, you can give an agent the ability to make monetary decisions on your behalf.
A durable power of attorney for health care can be added to empower a medical decision maker. You can choose the same person to act as the agent for both purposes, but this is not a requirement.
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