Back to Top
House and Family

Understanding Probate

Probate is a legal procedure where the assets of a deceased person are distributed among the rightful beneficiaries or heirs. This process usually begins when the executor, named in the deceased person's will, presents the will to a probate court for approval. If the person died without a will (intestate), a close relative or spouse usually initiates the probate process and may become the administrator.

What are Heirs?

Heirs are the individuals who are legally entitled to inherit from a deceased person's estate. The identity of the heirs is usually determined by the will of the deceased. However, if a person dies without a will, the heirs are determined by intestate succession laws. These laws vary by jurisdiction, but typically, the spouse, children, and closest relatives of the deceased are considered heirs.

Basics of Estate Planning

Estate planning refers to the preparation of tasks aimed at managing an individual's asset base in the event of their incapacitation or death. This includes determining how the estate will be preserved, managed, and distributed after death. Essential components of estate planning include writing a will, setting up trusts, establishing power of attorney, and detailing funeral arrangements.

Importance of a Will

A will is a legal document in which an individual, the testator, specifies how their estate should be distributed after death. Without a will, a deceased person's assets are distributed according to state law, which may not align with their wishes. A will also allows the testator to name an executor who will be responsible for settling the estate.

Trusts in Estate Planning

A trust is another crucial tool in estate planning. It allows a third party, known as a trustee, to hold and manage assets on behalf of the trust's beneficiaries. Trusts can be used to avoid probate, protect assets from creditors, and provide for heirs who are minors, financially irresponsible, or have special needs.

Power of Attorney and Advance Directives

Power of attorney designates an individual to act on someone's behalf in financial and legal matters should they become incapacitated. Advance directives, including healthcare proxies and living wills, specify the kind of medical care an individual wishes to receive if they can't make decisions themselves. Both documents help ensure that an individual's wishes are followed even if they become unable to communicate them.

Role of an Estate Planning Lawyer

An estate planning lawyer can provide legal advice to ensure a smooth transfer of assets after death, minimizing the chances of family disputes. They can help draft wills and trusts, designate beneficiaries, and navigate the probate process. Their role can be instrumental in reducing estate taxes and avoiding potential legal pitfalls.

Updating Estate Plans

Estate plans should be updated regularly to reflect changes in an individual's life, such as marriage, divorce, birth of children, or substantial changes in financial status. Regular reviews ensure that the estate plan continues to align with the individual's wishes and current law. Remember, effective estate planning is an ongoing process rather than a one-time event.