Estate Planning Newsletter

• Does a Killer have Rights to a Victim's Property?
  If a person murders a relative, is he/she entitled to receive any of the victim’s property? In most cases, the answer would be “no.” Usually, a convicted killer cannot inherit a victim’s property, even if he/she... Read more.
• Fraudulently Transferred Property & Constructive Trusts
  A constructive trust is a remedy imposed by a court when a person has wrongfully attained property in an inappropriate way. The court will undo the transaction and order that title to the property go to the rightful... Read more.
• New Estate Tax Rates Bring Certainty
  Much to the relief of many, the American Taxpayer Relief Act of 2012 (“2012 Tax Act”) was enacted in the beginning of 2013, making permanent many of the tax benefits that were scheduled to expire at the end of 2012. The... Read more.
• Use of Special Needs Trusts to Protect Public Benefits for the Disabled
  Some government statistics estimate that between 15% and 20% of all Americans have some form of disability. It is also estimated that the majority of disabled persons will need to avail themselves of public assistance to help pay the... Read more.

• 3 Estate Planning Documents Every Parent Needs
• The importance of estate planning
• Priscilla Presley and Riley Keough to Settle Dispute Over Family Trust
• 8 estate planning tips for advisors with artists and entertainer clients
• Fiduciary Duty Breached by Nephew Who Withdrew Funds That Belonged to Family Trust

What is Probate?

Probate, a Latin term meaning “to prove the will,” is a court-supervised process that settles a person’s affairs after death.

To ensure that the decedent’s final matters and wishes are handled correctly and without bias, most states have probate courts (or special departments of the court) to oversee the settling of estates. Probate may occur even if there is no will.

Court Appointees

Usually the court will appoint one of 2 types of persons to oversee the decedent’s final affairs:

• Executor – Typically the person, bank or trust company named in a will to administer the estate
• Administrator – Typically appointed if the decedent died without a will (intestate)

On behalf of the decedent, the probate court makes certain that:

• Any final bills and expenses are paid, including any taxes owed
• Any assets remaining are distributed to the beneficiaries named in a will
• If there was no will, any assets remaining are distributed to the correct heirs under the laws of intestate succession

What Qualifies for Probate?

The deceased person’s estate must have assets (such as real estate, bank accounts, securities) before probate occurs. Each state sets its own requirements on when probate is necessary, usually according to the value of an estate’s assets.

In some states, the assets must be at least $10,000 to go through probate, or modified probate. However, other states allow assets of up to $100,000 before probate occurs.

These assets would not include any real or personal property of the decedent’s that others receive directly through joint tenancy, trusts, life insurance benefits, right of survivorship or other means.

Reasons to Avoid Probate

The primary disadvantages of probate are:

• The time it takes for an estate to be administered through the probate process
  (which can span anywhere from several months to several years)
• The cost involved in the probate process (which can include fees for the court, estate administrator, attorney and taxes)