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Probate

Probate is the process of settling the estate of a deceased person.  If the estate is beyond a certain size and not structured properly, it may need to be settled among the heirs in probate court.

In most states, when a person dies the assets of that person become the property of the surviving spouse without the need for probate.  In states where this is not automatic and for smaller estates, property such as real estate, cars, bank accounts, etc. can be held in joint tenancy between the spouses so the surviving spouse will immediately receive ownership.  Everyone who has a positive net worth should at the very least keep a will naming a primary and secondary beneficiary to avoid potential problems in probate and to make sure their assets pass to the persons they wish.

In the will the estate holder names an executor to execute the terms of the will and handle the distribution of the estate's assets.  If there is no will and assets exist that are not held in joint tenancy, a probate court will decide who receives those assets and will appoint an administrator to distribute and close the estate.

Probate Procedure

Property of the deceased held in joint tenancy with rights of survivorship or other property that contractually passes to another after death in most cases will pass without the need for probate.  These can include bank accounts, real estate, automobiles, proceeds from insurance policies on the deceased and property held in living trusts.

For assets that go to probate, the court collects and inventories the assets of the deceased and pays any outstanding debts and taxes out of the assets.

Even with a will, there may be disputes during the probate process.  A claim on the estate can be made to the probate court by anyone including potential heirs unhappy with the property that they were willed or, more likely, not willed.  The court will determine the validity of any such claims.

Avoiding Probate

An estate in probate can take months to settle and distribute the assets to the proper heirs to the estate.  It can also incur a large expense in legal and court fees that reduces the size of the eventual estate.

Many people use living trusts to avoid having assets go into probate.  Upon death of the trust's owner, the trust is instructed to transfer ownership of the assets in the trust to the intended heir.  Such trusts may avoid some estate taxes but once setup are irrevocable.

Unfortunately, multi-million dollar estates (under current law) are subject to federal estate taxes.  Property included in the tax calculation include property held in living trusts, life insurance proceeds and most other estate assets net of liabilities.  Some trusts may be able to avoid estate taxation, "the death tax", but laws are constantly changing and the advice of legal counsel is necessary to properly structure such instruments.

 

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IRS Can Choose Whether To Encumber NonProbate Assets WealthManagement.com
WealthManagement.com IRS Can Choose Whether to Encumber Non Probate Assets WealthManagement.com Estate of Myers v. Commissioner1 is an important estate planning case as it suggests the Internal Revenue Service can pursue unpaid estate taxes against its and more raquo

Chambliss Attorney To Chair Tennessee Bar Association Estate Planning, Probat...
The Chattanoogan Chambliss Attorney To Chair Tennessee Bar Association Estate Planning, Probate Section The Chattanoogan Ms. Exum previously served as the vice chair of the TBA Estate Planning and Probate Section, overseeing activity for nearly 700 members. The section keeps members informed of changes in the law related to estate planning and probate matters through

Using A Testamentary Trust To Simplify Probate WealthManagement.com
WealthManagement.com Using a Testamentary Trust to Simplify Probate WealthManagement.com I recently helped an executor administer an estate that poured over to an unfunded revocable trust. Although the decedent failed to use the trust to avoid probate, the trust made probate easy. The executor immediately transferred all the probate assets

Randolph Mailloux To Speak On Estate Planning At SSCL June 28 Bangor Daily News
Randolph Mailloux to Speak on Estate Planning at SSCL June 28 Bangor Daily News He is a former member of the National College of Probate Judges, the Maine Probate Judges Assembly, the American Judges Association, and the National Network of Estate Planning Attorneys. He is a current member of the Maine State Bar Association, the

Trusts As A Tool In Longterm Care Planning Greater Wilmington Business Journal
Greater Wilmington Business Journal Trusts As A Tool In Long term Care Planning Greater Wilmington Business Journal Andrew Olsen is an attorney in the CSH Law Elder Law Practice Group in Wilmington, NC, where he practices in the areas of elder law, estate planning probate, guardianship, alternative dispute resolution, estate and trust litigation, special needs

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Facts of Law covering estate probate law

Facts of Law - Estate Probate