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.
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.[26]
Mediation serves as an alternative to a full-scale litigation to settle disputes. At a mediation, family members and beneficiaries discuss plans on transfer of assets. Because of the potential conflicts associated with blended families, step siblings, and multiple marriages, creating an estate plan through mediation allows people to confront the issues head-on and design a plan that will minimize the chance of future family conflict and meet their financial goals.
As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and no one has the right to suppress it. The person with possession of a will, usually the personal representative or the decedent's attorney, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time.
All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.
It should also be noted that there are ways to avoid probate, one of those being to create a living trust. Under Texas law, you can make a living trust to avoid probate for virtually any asset you own. You need to create a trust document (similar to a will) naming someone to take over as trustee after your death. Next – and this is a crucial requirement – you must transfer ownership of your property to yourself as trustee of the trust. Once that’s done, the property will be controlled by the terms of the trust. Upon your death, your successor trustee can transfer it to beneficiaries without probate court proceedings.
After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes, including estate tax in the United States, if the estate is taxable at the federal or state level. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.
Applications for probate are made to the probate office in the jurisdiction with which the deceased has a close connection, not necessarily where the person died. Normally, only the executor of a will can apply for a grant of probate, and it is their duty to obtain probate in a timely manner. Executors can apply for probate themselves (which is often done to reduce legal fees) or be represented by a lawyer. With the application for probate, the applicant must also provide the original of the will, an official death certificate (not the one issued by a medical professional), a copy of the death notice and a statement of the known assets and liabilities of the deceased estate. The applicant may also be required to have published a notice in a major newspaper of an intention to make the application for probate.
Under the Wills Act 1959, the youngest age to write a Will is when he/she is 18 years old, whereas for Sabah, it is 21 years old. At the time of signing a Will, the testator as the maker of the Will, must have sound mind which means he/she must be fully aware of the document he/she is signing is a Will, understand the contents of his/her Will and is not intoxicated by drugs or any mental illness affecting his/her mental capacity. At the time of signing, he must not be under duress or undue influence. In addition, when the Will is signed by the testator, there must be at least two witnesses who are at least 18 years old, of sound mind and they are not visually impaired. The role of the witnesses is only to attest that the testator signed his/her Will.
The persons who are actually given the job of dealing with the deceased's assets are called "personal representatives" or "PRs". If the deceased left a valid will, the PRs are the "executors" appointed by the will—"I appoint X and Y to be my executors etc." If there is no will or if the will does not contain a valid appointment of executors (for example if they are all dead) then the PRs are called "administrators". So, executors obtain a grant of probate that permits them to deal with the estate and administrators obtain a grant of administration that lets them do the same. Apart from that distinction, the function of executors and administrators is exactly the same.[16]
If the decedent died with a will, the will usually names an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.
Executors "step into the shoes" of the deceased and have similar rights and powers to wind up the personal affairs of the deceased. This may include continuing or filing lawsuits that the deceased was entitled to bring, making claims for wrongful death, paying off creditors, or selling or disposing of assets not particularly gifted in the will, among others. But the role of the executor is to resolve the testator's estate and to distribute the estate to the beneficiaries or those otherwise entitled.
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.
When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of "self-authenticating" wills. These wills contain a statement signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the personal representative of costly procedures if the witnesses are unavailable.
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.
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.[37]
A will includes the appointment of an executor or executors. One of their duties is to apply to the Probate Division of the High Court for a grant of probate.[30][31] An executor can apply to a local probate registry for a grant themselves but most people use a probate practitioner such as a solicitor. If an estate is small, some banks and building societies allow the deceased's immediate family to close accounts without a grant, but there usually must be less than about £15,000 in the account for this to be permitted.[16]
All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.
There are many different types of grants of representation, each one designed to cover a particular circumstance. The most common cover the two most common situations—either the deceased died leaving a valid will or they did not. If someone left a valid will, it is more than likely that the grant is a grant of probate. If there was no will, the grant required is likely to be a grant of administration. There are many other grants that can be required in certain circumstances, and many have technical Latin names, but the general public is most likely to encounter grants of probate or administration. If an estate has a value of less than £5,000.00 or if all assets are held jointly and therefore pass by survivorship, for example to a surviving spouse, a grant is not usually required.
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An executor is a person appointed by a will to act on behalf of the estate of the will-maker (the "testator") upon his or her death. An executor is the legal personal representative of a deceased person's estate. The appointment of an executor only becomes effective after the death of the testator. After the testator dies, the person named in the will as executor can decline or renounce the position, and if that is the case should quickly notify the probate court registry accordingly.
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.
Estate planning is the process of anticipating and arranging, during a person's life, for the management and disposal of that person's estate during the person's life, in the event the person becomes incapacitated and after death. The planning includes the bequest of assets to heirs and may include minimizing gift, estate, generation skipping transfer, and taxes.[1][2][3] Estate planning includes planning for incapacity as well as a process of reducing or eliminating uncertainties over the administration of a probate and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can only be determined by the specific goals of the estate owner and may be as simple or complex as the owner's wishes and needs directs. Guardians are often designated for minor children and beneficiaries in incapacity.[4]
