Staying clear of the troubles of probate can only be achieved with the appropriate and timely estate plan. Your family’s financial and probate needs are unique and can only be established through estate planning documents.
specifically, estate plans, concerns what happen to your assets both while you are alive and well or dead, how you want to share your assets to family, children or spouse, who takes over making certain important decisions for you in cases of mental incapability and lastly transfer of ownership of a property. These plans can only be presented, documented and implemented in wills and testament, living trust, revocable or irrevocable trust, advance medical directives and lastly financial power of attorney (power of attorney).
However, probate is a process in which a will is proved in a law court to see if they are valid and true enough to be approved and implemented. Probate follows a legal process where your last Will is verified in a probate court, before distribution of your assets and properties according to the will. Depending on some factors — such as the state laws binding your locality — the probate process can be quite complex and demanding.
Understating the probate process of a Will
In every state or region, there will be a Surrogate’s court. This is the court where Probation of a Will is conducted. Probate Law process varies across the different states in the country. The Probate Law is guided by the Estates, Power and Trust Law (EPTL), and the Surrogate’s Court Procedure Act (SCPA).
Last will are always faced with probate before they can be implemented. When you pass away, your family is faced with the challenge of managing and sharing your assets among themselves. This is a delicate, emotional and trying time, when they will be faced with a lot of decisions to make. Leaving them without a Will–a valid one–will make things even more difficult for them. Probate in itself is the legal process of determining the validity of a will before its contents are carried out. Not all Wills are valid. A will may be contested. When one or more parties feel that the deceased was forced into signing the will, or that they are being cheated out of their inheritance, such party may issue out a petition of contest of will. Thus, increasing the probate process.
In the absence of a valid Last Will prior to the death of the decedent, such situation is remedied by the State’s intestacy laws.
The role of an estate planning attorney
The probate attorney would help you plan your estate to avoid any form of court contest or probate and likewise also ensure you don’t walk through probate process alone.
The following is what the estate attorney would do for you:
- Write your wills according to the state laws. State laws rules over what can be included in estate plan documents such as will. They regulate the documenting process of will as well as the formalities through which a will can be implemented.
- Evaluate your estate. While planning your estate, it is expected that you evaluate your assets and properties. With the help of the probate attorney, you can start planning your estate.
- Payment of estate debts, bills and expenses. This is important as each and every asset must be accounted for, and the monetary worth of the estate established. Out of these assets, bills, taxes and debts will have to be paid before the remnant is distributed to every beneficiary. If the value of the estate doesn’t suffice to be shared according to the will, then the beneficiaries wouldn’t get what the decedent intended them to have
- Prepare other estate planning documents such as living trust, power of attorney and advance medical directives. With living trust, you can decide who takes over plans of your estate, make financial decisions over your assets both while you are alive or dead as well as when you become mentally incapacitated.
- Distribution of estate assets to the beneficiaries.
- The estate attorney may also act as the estate administrator or executor in the absence of a valid Will.