Wills and Trusts – FAQ’s
Q: What Is Probate?
A: Probate is a court-supervised process that includes:
- Evaluating and deciding on the validity of your will (if you have one).
- Gathering all of your assets, making an inventory of those assets, and having the assets appraised.
- Paying your outstanding expenses, debts, and taxes. These are generally paid in the following order: costs and expenses involved with the administration of your estate, funeral expenses, debts and taxes, then all other claims, including will distributions.
- Distributing the remaining assets to the person(s) entitled to them.
Q: What Assets Are Included In My Probate Estate?
A: The assets that are included in your estate for purposes of probate are called your probate estate. Probate assets include solely owned property as well as your interest in jointly owned property, collections, antiques other miscellaneous household items, including cars, and the value of any life insurance policies, trusts, annuities, and/or retirement plans payable to the estate. The fact that your probate estate is small does not necessarily mean that your taxable estate will be as well. Remember, just because an asset is not part of your probate estate does not mean that it is not part of your taxable estate.
Q: Where Does Probate Take Place?
A: Probate takes place in the county that was your legal residence at the time of your death. Probate is a court-supervised process that takes place in Probate (or Surrogate) Court. Out of state property will be subject to proceedings in that state as well.
Q: Can Anyone Find Out What I Owned If I Go Through Probate?
A: Probate is a public process. There is little to no privacy regarding the details of your will, your outstanding debts, and the extent of your assets.
Q: Do I Need a Lawyer to Draft My Will or Trust?
A: While having a lawyer is not required, it is a good idea to consult with an experienced estate planning attorney. Certain formalities must be followed when making a will or drafting a trust. Failure to follow those formalities can cause inconvenience, additional costs or even invalidation of the will or trust. In addition, there are often complex tax issues to consider when designing your estate plan. An experienced attorney can help you to sort through these issues and make the right decisions for you, your estate, and your heirs.
Q: How Should I Choose an Executor of My Estate?
A: Once your will is validated by the Court, the executor you named in your will is generally required to perform certain duties. You should choose a person (or institution) you trust to handle these responsibilities. Duties of the executor include the following:
- File papers in the local probate court
- Prove the validity of your will
- Provide a list of your property, debts, and the names of those who stand to inherit
- Give proper notice of death by filing the death certificate
- Pay valid creditors
- Pay required taxes
- Notify the Social Security Agency and other important agencies of your death
- Cancel all credit cards, magazine subscriptions and other unnecessary utilities
- Distribute your assets according to your will
Q: Who Should Not Be an Executor of My Estate?
A: An executor cannot be a felon or a minor. Your executor must be a citizen of the United States. Some states also require that the executor be a resident of the state. To avoid any perceived conflicts of interest, it is sometimes recommended that your executor not be a beneficiary under your will. Finally, expense is a consideration. Often friends or family members will perform the duties of an executor without charging your estate, an institution will not.
Q: How Do I Choose a Guardian For My Children?
A: A guardian should be an adult with similar values and good parenting skills that you trust to raise your children to age 18. Guardians are legally responsible for the physical care, health, education, and welfare of the child or children under their care. The guardian you choose will not be paid for his/her services, nor will he/she be required to meet your child’s financial needs. You should ensure that there are adequate funds available for these needs.
You should talk to the person you propose to name as a guardian to ensure that he/she is willing and able to undertake this responsibility.
Q: What Is the Difference Between a Durable Power of Attorney and a Conservatorship/Guardianship?
A: The main difference is your ability to decide who is in control when you are incapacitated.
With a durable power of attorney, you choose the person you want to take over your affairs and act for you. A durable power of attorney grants the person you choose the power to act on your behalf on a range of issues determined by you. The person you choose is called your attorney in fact and he/she does not have to wait for you to be declared incapacitated before he/she can act under the durable power of attorney.
A guardian is charged with caring for both your person and property; a conservator is responsible only for your property and money. A conservator and guardian are both appointed by the Court and these appointments involve a court hearing to determine incapacity. A lawyer is usually appointed by the court to represent and safeguard your interests. The hearing will involve medical and/or mental professionals who will evaluate you and report to the court.
Q: What Will Happen If I Die Without a Will?
A: When you die without a will you die intestate. Your estate will go through intestacy proceedings in probate court. The state will then make all the decisions you could have made if you had drafted a will including the following:
- The state will decide who will inherit from you using your state’s intestacy laws.
- The State will decide who should oversee the administration of your estate.
- The state will pay your estate administrator out of your estate’s assets. Often, the person you choose in your will to act as executor will offer to do so for free. In addition, with a will you would have had the chance to waive the requirement that your executor post a bond. The state will likely require the court appointed administrator to post a bond. The bond will be paid for out of the assets in your estate.
- The state will choose the guardian for your children without any input from you.
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