One of the main functions of probate court is handling estate settlement proceedings to ensure assets are transferred to heirs. With that said, this court also deals with other types of legalities related to guardianship, elder law, and cases involving minor children.
Probate court was established to ensure that individuals’ rights are protected and that decedent estates are reconciled in accordance with state laws. Probated estates must pass through specific procedures before assets can be distributed. These procedures are based upon whether or not a valid Will is filed.
When decedents prepare a Will prior to death the estate is recognized as testate and is settled based upon directives provided. If a Will is not prepared, the estate deemed intestate and assets are transferred to rightful heirs according to state law.
Although hiring an estate attorney is not required, most people prefer to do so. Estate settlement proceedings can be quite complicated, especially if anyone contests the Will or files claim against the estate.
Many people are unaware of the burdens they impose of loved ones if they fail to engage in estate planning. Intestate probate cases often take several months to reconcile. An estate administrator has to be appointed by the court. Rightful heirs must be identified before property can be transferred.
Nothing can be done until a judge confirms appointment of the Administrator. In fact, anyone who engages in any type of estate settlement proceedings without court confirmation is subject to legal ramifications.
An unfortunate truth is when assets are tied up in probate they often depreciate in value. Heirs are responsible for paying inheritance tax on the date of death value, rather than the appraised value at the time they receive it.
Worse yet, if decedents had a high level of debt their assets might have to be sold to close their estate. Delinquent taxes and creditor obligations must be paid before assets can be transferred to heirs.
Testate estates are somewhat easier to reconcile because specific directives are included in the Will. The document is used to appoint the Administrator and recipients of estate property.
The time required to settle probated estates varies depending on the complexity of the estate. The average duration is between 4 and 9 months. One way to avoid probate altogether is to transfer assets to trusts.
Once property is placed in a trust it is no longer part of the estate; making it exempt from probate. Assets can be given to named beneficiaries as soon as settlement proceedings are completed.
Since there are various types of trusts it’s advisable to hire an estate planning lawyer to establish trusts. A few that are used most often include living, family, and trust funds for children.
Other documents which are commonly used with trusts include Wills, healthcare proxies, and power of attorney forms. Combined, these legal documents offer protection throughout life and after death.
Few people enjoy the thought of spending time in probate court. The only way to avoid the encounter is to put together a comprehensive estate plan that eliminates the need for legal proceedings.