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Estate Planning Newsletter

  • Receipt of Assets in a Totten Trust upon the Owner's Death
    A decedent’s assets may be transferred upon their death to their heirs or other beneficiaries through probate. “Probate” is the legal process by which a court determines who receives a decedent’s assets under... Read more.
  • Life Insurance Uses
    There are numerous uses for life insurance. Some are obvious; others are very creative. Some of the most common uses include paying estate taxes, estate administration, inheritance equalizing and many others. Estate Taxes... Read more.
  • Getting Rid of an Executor or Administrator
    State laws and procedures typically govern the administration of an estate. For this reason, the law varies among jurisdictions. However, in 1969, a “Uniform Probate Code” (Uniform Code) was introduced. Since that time,... Read more.
  • Valuation of Contaminated Property
    The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) imposes liability for the investigation and cleanup of contaminated real property without regard to whether the landowner created or allowed the... Read more.
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The Meaning of 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)
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