Jun 25 2010

Difficulties That Extend the Probate Process

The probate process occurs when property is to be passed, due to a death, to the legal heirs. This can be an emotional time for all involved, and sometimes things are overlooked that lengthen the process and make more difficulties than necessary for the survivors. There are things you can do to prevent this situation, whether you are making a will or are one of the beneficiaries of a will.

First, if you are making your will, you should seek the advice of a competent attorney to help you decide the best way to dispose of your assets and avoid unnecessary taxes or problems with division of property. “Do-it-yoursef” will kits rarely give you the flexibility to plan your estate effectively, even if you do not own much property. Further, as they are constructed for mass marketing, they do not take into account various state laws regarding inheritance. Many difficulties have arisen from probate judges refusing to probate “homemade” wills or being unable to interpret them.

Another thing that can delay the process is multiple wills. If you do decide to change your will, make sure that an attorney handles the change for you. Wills can be added to by something called a codicil; they are also nullified by marriage or birth. If you experience a life-changing event, you must consult with your attorney as to how to handle your will changes. A new will should always be drawn up by a lawyer and properly witnessed so there is no doubt of its precedence; further, all copies of old wills should be destroyed.

Finally, if you are a beneficiary of a will, you should submit in a timely manner to any and all requests of the probate court. Most wills name one or two beneficiaries as executors. If you are an executor, meet with the attorney who drew up the will and comply with all requests immediately, in order to ensure that there are no unnecessary delays.

This article is not intended as legal advice.

Legal Reference: The Law Office of Andrew M. Lamkin, P.C. in Long Island, New York


Mar 22 2010

Avoiding the Probate Process

The probate process is not a one day affair. It can take several months or a year at the most. Substantial monetary costs associated with attorneys and the courts are incurred during this period. Living trusts help in avoiding probate. This entails the transfer of property from an individual to a trust. In this case, the individual is referred to as a settler/creator. The trust established is controlled by the said settler. The beneficiaries obtain ownership of property after the death of the settler. A living trust has the added advantage of maintaining privacy through avoiding public scrutiny.

Using Bank Accounts and Brokerage Accounts

Another sure way of avoiding probate is through having bank accounts with paid on death designations and brokerage accounts with transfer on death provisions. This ensures automatic transfers to the chosen beneficiary or beneficiaries. If the property happens to be real estate, a life estate deed must be executed through the naming of a beneficiary to a deed by the testator.

As a matter of fact, naming beneficiaries on all assets is a sure way to avoiding probate. Life insurance is a good example of this. Declaring an estate belonging to the insured person as the contingent beneficiary will once again lead to probate. Incorporating right of survivorship to joint tenancies and savings accounts also avoids probates. Probate and the estate can be bypassed through the use of segregated funds. These have a provision within them that enables the designation of a beneficiary. This is however not a guarantee of tax elimination. The definition of a taxable estate under the modified federal estate law is any property received by a party after the death of the owner including payable on death and transfer on death finances, life insurance and property held in living trust.

Overcoming Tax Advantage Limitation

Properly structured inter vivos trusts have been known to reduce tax but not eliminate it. The complete avoidance of tax is only possible through the irrevocable give away of an entire estate or leaving it to a recognized and qualified charity. Heirs can benefit from up to twice the total estate if a married couple had credit shelter trusts that enabled them to preserve both unified credits.

This article should not be treated as a legal advice.

For more information about probate process, visit the website of Attorney Adrian Philip Thomas. Serving clients in the state of Florida.