Probate is the court-supervised process of distributing the estate of a deceased person. In the case of a will, the probate court decides the validity of the will, guides the executor, and administers the distribution of the estate in a way that is fair to the Testator/Testatrix and his or her heirs. All wills must be admitted to probate to be effective.
If a person dies intestate (without a will), his or her property, outside enforceable debts and funeral expenses, comes under the Law of Descent and Distribution. In most states, the decedent’s property comes under the purview of the court that has jurisdiction over the property.
The court will appoint an administrator, who will distribute assets according to common law of descent, with the property going first to the spouse, then to children or descendents if there is no spouse. If there are no descendents, the property goes to the decedents’ parents, then siblings, then siblings’ descendents, then grandparents, and so on. For a person with an estate of any size, dying intestate effectively ends any post-life control the individual can exert over his or her estate.
Competent estate planning can help your heirs avoid the long and painful probate process. For example, establishing a revocable living trust will protect your assets while you are living. This type of trust, established by an individual or a married couple, becomes effective immediately upon establishment and remains revocable and amendable during the lifetime of the Trustor.
In addition to avoiding probate, a revocable living trust can be valuable in tax planning, providing for management during periods of incapacity without need for guardianship or conservatorship, and provide for ultimate distribution of an estate.
A Living Trust allows you to hold legal title to your assets and manage them while you are alive and well, as well as designate successor trustees to follow your instructions in the event of incapacity. It usually becomes effective immediately after incapacity or death and, unlike a Will, when properly funded avoids the publicity, expense, delays and frustration of probate. It can also allow for the management of your affairs without the need of a conservatorship or guardianship proceeding. A Living Trust is revocable, meaning it can be changed whenever you want, and even terminated.
Not necessarily. Certain assets, such as retirement accounts, should not go into a Living Trust.
You can begin a probate and/or trust administration proceeding with Ms. Pizzolato’s firm by obtaining a Confidential Client Intake Form by calling or e-mailing our office.