The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.
Estate planning is an important part of financial planning, so it’s important to find the right attorney to prepare your will. Although most family attorneys can put together a basic will, you may want one who specializes in wills and estate planning, especially if you have a lot of assets or a dependent to take care of. You may need an attorney who has expertise in planning and executing trusts and a background in taxes. Ask how the attorney charges; some charge by the hour, others have a set fee for writing wills, and some charge a percentage of the total value of the estate. Make a list of several potential wills attorneys to interview. Make sure you make a strong personal connection with your attorney — you need to be comfortable telling him or her personal, confidential information about your life, and you need to feel that the attorney is committed to solving any problems that may arise while writing your will. Also find out how long the attorney has practiced estate law and whether he or she has handled wills similar to yours.
1) n. the process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will. The first step is to file the purported will with the clerk of the appropriate court in the county where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or if none is available, then an administrator) with declarations of a person who had signed the will as a witness. If the court determines the will is valid, the court then "admits" the will to probate. 2) n. a general term for the entire process of administration of estates of dead persons, including those without wills, with court supervision. The means of "avoiding" probate exist, including creating trusts in which all possessions are handled by a trustee, making lifetime gifts, or putting all substantial property in joint tenancy with an automatic right of survivorship in the joint owner. Even if there is a will, probate may not be necessary if the estate is small with no real estate title to be transferred, or all of the estate is either jointly owned or community property. Reasons for avoiding probate are the fees set by statute and/or the court (depending on state laws) for attorneys, executors and administrators, the need to publish notices, court hearings, paperwork, the public nature of the proceedings, and delays while waiting for creditors to file claims even when the deceased owed no one. 3) v. to prove a will in court and proceed with administration of a deceased's estate under court supervision. 4) adj. reference to the appropriate court for handling estate matters, as in "probate court." (See: will, executor, administrator)
After probate is granted, executors are empowered to deal with estate assets, including selling and transferring assets, for the benefit of the beneficiaries. For some transactions, an executor may be required to produce a copy of the probate as proof of authority to deal with property still in the name of the deceased person, as is invariably the case with the transfer or conveyance of land. Executors are also responsible for paying creditors and for distributing the residual assets in accordance with the will. Some Australian jurisdictions require a notice of intended distribution to be published before the estate is distributed.
Estate planning is an ongoing process and should be started as soon as an individual has any measurable asset base. As life progresses and goals shift, the estate plan should shift in line with new goals. Lack of adequate estate planning can cause undue financial burdens to loved ones (estate taxes can run as high as 40%), so at the very least a will should be set up—even if the taxable estate is not large.
This affidavit is a document that can be used when someone dies without a will and the estate consists mostly of real property titled in the decedent’s name. Under Texas law, the affidavit becomes evidence about the property once it has been on file for five years in the county in which the decedent’s property is located. Its legal effect is that it creates a clean chain of title transfer to the decedent’s heirs.
As a result, the individual has a lower effective cost of giving, which provides additional incentive to make those gifts. And of course, an individual may wish to make charitable contributions to a variety of causes. Estate planners can work with the donor in order to reduce taxable income as a result of those contributions, or formulate strategies that maximize the effect of those donations.
Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process. For example, California has a “Small Estate Summary Procedure” to allow the summary transfer of a decedent's asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $150,000.
The cost of an estate plan depends largely on the number of parts it includes and the complexity of the documents. The most basic estate plan is simply a will, but it may also include designating power of attorney or a health care proxy to another person, writing a living will, or making a HIPAA authorization. The average national cost to make an estate plan ranges from $350 to $900, but can cost much more in complicated situations. For example, an estate attorney may charge only $900 to prepare a basic will providing outright distribution — meaning that property and assets are distributed upon death. Writing a more complicated will and holding assets in trusts can cost $3,000, or more. The process of creating an estate plan generally takes two to four weeks, starting with the initial consultation with the wills attorney to identify areas of concern in order to design an estate plan that fits your goals and budget. Once an estate plan is written, the attorney meets with the clients, a notary, and two neutral witnesses to review and sign the plan and associated documents.
Family attorneys and estate attorneys, also called probate and wills attorneys, can each prepare wills. The type of lawyer best suited to prepare your will depends on your situation. Most family attorneys provide services to prepare basic wills, including bequeathing property and personal items to family or naming a guardian for minor children. However, estate attorneys specialize in preparing wills in more complex situations. Consider hiring an estate attorney if you:
While you may think that you've covered all your bases, it may be a good idea to consult with a professional on a full investment and insurance plan. And if it's been a while, you may want to revisit your plan. As you get older, your needs may change, such as figuring out if you need long-term care insurance and protecting your estate from a large tax bill or lengthy court processes. Professionals will also be up on changes in legislation and income or estate tax laws, which could impact your bequests.