Probate Attorney: Handling Estates, Wills and Trusts

If you have ever heard any of these terms or are now dealing with a legal matter regarding any of the following, you have come to the right place. Here at Demesmin and Dover law firm, our dedicated team of probate attorneys, with expertise in estate law, will help you through the probate process and navigating your case as a whole. To start off, we want you to have all of the necessary information as to what some of these cases entail as well as explain a bit of what goes into the process for each of these types of cases.

A probate attorney defines important terminology

In order to understand what constitutes a case, or whether the involvement of a probate lawyer is needed, there are some key terms that need to be identified first.

What is probate?

Probate is a legal process that takes place after someone passes away. It involves proving the validity of the deceased person’s will (if there is one) in court. This process is crucial for transferring the deceased person’s estate, which includes all their assets, to their heirs and beneficiaries.

Here’s a breakdown of what typically happens during probate:

Filing the Petition: The process begins with filing a petition in the probate court in the county where the deceased person lived. This usually happens either by the executor named in the will or by an interested party.
Appointment of Executor/Administrator: If the court finds the will valid, it appoints an executor (if one is named in the will) or an administrator (if there is no will or no executor named) to handle the deceased person’s estate.
Inventory of Assets: The executor or administrator then takes inventory of the deceased person’s assets, which may include property, investments, bank accounts, and personal belongings.
Payment of Debts and Taxes: Before distributing assets to beneficiaries, the executor/administrator is responsible for paying any debts, taxes, or expenses owed by the estate. This includes funeral expenses, outstanding bills, and taxes owed to the state or federal government.
Distribution of Assets: Once debts and taxes are settled, the remaining assets are distributed to the beneficiaries according to the terms of the will or the laws of intestate succession if there is no will.

Probate can be a complex and lengthy process, depending on various factors such as the size of the estate, whether the will is contested, and state laws. In some cases, probate proceedings can take several months to several years to complete. That is why it is recommended to hire a probate attorney to help in the proceedings that occur with these cases.

What constitutes an estate?

An estate refers to the collective sum of an individual’s estate assets, including real estate, personal property, investments, and financial accounts, at the time of their death. Understanding how estates are managed and distributed is crucial for estate planning and the legal process that follows an individual’s passing.

Components of Estate Assets

Real Estate: This includes any land or property owned by the deceased, such as homes, rental properties, etc.
Personal Property: This encompasses tangible items like vehicles, jewelry, furniture, and household goods.
Financial Assets: These include bank accounts, stocks, bonds, retirement accounts, and life insurance policies payable to the estate.
Business Interests: Ownership stakes in businesses or partnerships are also part of the estate, managed by the personal representative who ensures proper administration and distribution.

Factors Influencing Distribution

Several factors can influence how an estate is distributed:

Wills and Trusts: A legally valid will directs how assets are distributed, while trusts can provide more control and privacy in managing assets.
State Laws: Each state has its own laws governing the distribution of estates without a will (intestacy laws).
Estate Taxes: Depending on the size of the estate and jurisdiction, estate taxes may apply, impacting the amount beneficiaries receive.
Complex Assets: Assets like business interests or international property can add complexity to the distribution process.

Estate Planning Strategies

To facilitate smoother estate distribution and potentially minimize taxes and legal fees, individuals often employ various estate planning strategies, such as:

Creating a Will: Clearly outlining how assets should be distributed.
Establishing Trusts: Holding assets for specific beneficiaries or purposes.
Gifts and Transfers: Transferring assets during one’s lifetime to reduce the size of the taxable estate.

Understanding the process of estate management and distribution through probate or other legal means is essential for effective estate planning and ensuring assets are transferred according to one’s wishes or state law.

What is a will? What is a trust? What is the difference between them in estate planning?

When planning for the distribution of assets and estate management, individuals often consider both wills and trusts as essential components of their estate planning toolkit. While both serve important roles in determining how assets are managed and distributed after death, they differ in their scope and function. An estate planning attorney works with living clients to help them plan their estate, offering services such as drafting wills and trusts, asset protection, tax planning, and assistance with incapacity or Medicaid planning.

Wills:

Definition: A will, also known as a last will and testament, is a legal document that outlines an individual’s wishes regarding the distribution of their assets after death.
Functionality:

Asset Distribution: Wills specify how assets, such as property, investments, personal belongings, and financial accounts, should be distributed among beneficiaries.
Executor: A will typically appoints an executor, who is responsible for overseeing the distribution of assets, ensuring the terms of the will are carried out, and determining and paying any inheritance taxes.
Guardianship: Wills may also designate guardians for minor children or dependents.
Flexibility: Wills can be updated or revoked during the individual’s lifetime to reflect changing circumstances or preferences.

Trusts:

Definition: A trust is a legal arrangement where a trustee holds and manages assets on behalf of beneficiaries according to the terms specified in the trust document.
Functionality:

Asset Management: Trusts can manage assets during the individual’s lifetime and after death, providing ongoing management and control over how assets are used for beneficiaries’ benefit.
Privacy: Unlike wills, trusts can often avoid probate, providing privacy and potentially reducing legal costs and delays associated with estate administration.
Specific Instructions: Trusts can include specific instructions on how and when assets are distributed. For example, funds can be distributed gradually over time, or used for specific purposes such as education or healthcare.
Flexibility: Trusts can be structured to provide ongoing benefits for beneficiaries, especially in cases where beneficiaries may need asset management over an extended period.

Types of Trusts: There are various types of trusts, including revocable trusts (can be changed during the individual’s lifetime) and irrevocable trusts (cannot be easily changed once established).

Choosing Between a Will and a Trust:

Complexity: Trusts are generally more complex to create and manage compared to wills, and may involve more upfront costs.
Objectives: Individuals with significant assets, complex family situations, or specific wishes regarding asset management may benefit from establishing a trust.
Complementary: In many cases, individuals use both a will and a trust as part of a comprehensive estate plan, with the will covering any assets not included in the trust.

In conclusion, while both wills and trusts serve important roles in estate planning, their differences lie primarily in how they manage and distribute assets, handle legal processes like probate, and provide ongoing management and control over assets for beneficiaries. Consulting with legal and financial professionals can help individuals determine the most appropriate strategies based on their specific needs and objectives.

Why do I need a probate attorney?

Now that all the terms relating to probate have been defined, the intricacies of these cases become a bit more clear, that is why it is important to have a trusted probate attorney. With their knowledge of probate and state laws, they can make it easier for the estate’s heirs to receive the assets outlined within the will.

That is why you should call Demesmin and Dover Law firm, hiring a probate attorney with experience in the state’s probate process is extremely important. Our experienced attorneys will guide you through every step of legal proceedings relating to wills, trusts, or estate planning. If you are looking for an attorney to represent you with probate litigation, estate planning documents, or just general help with understanding what the next steps are call us today at 866-954-MORE (6673). We are available 24-7 to you and your family members.