Beyond the absence of a challenge, there is also the question of probate administration, either Independent Administration or Dependent Administration. An executor can request Independent Administration if the will says they can ask for this. If the will says nothing about administration, all the beneficiaries agree that Independent Administration is the proper course of action. In this case, the executor does not have to post bond and no court supervision is required for the executor to take the steps needed to settle the estate. However, the executor must still publish notice of the probate (to inform potential creditors of the probate) and file an inventory of the estate’s assets.
A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the contract is supported by consideration—something of value—and the agreement is otherwise valid, the heirs will be prevented from contesting the will. The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will. States vary as to the remedies a party to an agreement not to contest a will has upon breach. These include an Injunction against the prosecution of the contest, an action at law for damages, or a defense to the contest.
The appointment of an administrator follows a codified list establishing priority appointees. Classes of persons named higher on the list receive priority of appointment to those lower on the list. Although relatives of the deceased frequently receive priority over all others, creditors of the deceased and 'any other citizen [of that jurisdiction]'[citation needed] may act as an administrator if there is some cognizable reason or relationship to the estate. Alternatively, if no other person qualifies or no other person accepts appointment, the court will appoint a representative from the local public administrator's office.
A grandfather may encourage his grandchildren to seek college or advanced degrees and thus transfer assets to an entity, such as a 529 plan, for the purpose of current or future education funding. That may be a much more tax-efficient move than having those assets transferred after death to fund college when the beneficiaries are of college age. The latter may trigger multiple tax events that can severely limit the amount of funding available to the kids.
Because life insurance proceeds generally are not taxed for U.S. Federal income tax purposes, a life insurance trust could be used to pay estate taxes. However, if the decedent holds any incidents of ownership like the ability to remove or change a beneficiary, the proceeds will be treated as part of his estate and will generally be subject to the U.S. Federal estate tax. For this reason, the trust vehicle is used to own the life insurance policy. The trust must be irrevocable to avoid taxation of the life insurance proceeds.
The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.
Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health, and your wealth. If you're young and in good health, adopting a complex probate-avoidance plan now may mean you'll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate because your property may qualify for your state's simplified probate procedure.
The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.
In the public mind, the term “probate” is often associated with expense, delay, suffering and, sometimes, prolonged legal disputes. While there are many probate myths and misconceptions, it is basically a court-supervised method of handling the property of a deceased individual. During probate, the court will appoint someone to be in charge of the deceased person’s financial affairs, property, assets, and debts. Outstanding debts are addressed, and the remaining property is distributed to the heirs of the deceased.
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