Probate Services
What is probate and why is it important?
Probate is the legal process through which a deceased person’s estate is administered and distributed. It is a critical process because it provides a formal and legal way to ensure that a person's wishes (as outlined in their will) are carried out and that the estate is properly administered. The process involves validating the deceased person’s will (if one exists), paying off any debts and taxes, and transferring the remaining assets to the beneficiaries or heirs. It ensures that the deceased's financial and legal affairs are properly settled according to the law and resolves disputes that may arise over the distribution of assets. It can also involve trust administration when disputes over the validity of a trust arise. In addition, probate court handles the process for appointing guardian and conservators, who will make important financial, medical, and personal decisions on behalf of someone who can no longer make these decisions for themselves.
Here are the key steps in the probate process for a decedent's estate:
1. Filing the Will
If the deceased person (the decedent) had a will, it must be filed with the probate court. If there is no will, the estate is considered "intestate," and the probate court follows the state's laws on distributing the estate. The probate process begins when the executor (or personal representative) of the estate submits the will to the court.
2. Appointment of Executor or Administrator
If the decedent's will names an executor, the court formally appoints that person to oversee the estate. If there is no will, the court will appoint an administrator—usually a close relative or someone nominated by the family.
The executor or administrator is responsible for managing the estate, paying debts, and distributing assets according to the will or state law.
3. Inventory of Assets
The executor or administrator must identify and inventory all of the decedent’s assets. This includes real estate, bank accounts, investments, personal property, and any other valuables. These assets are typically appraised to determine their value at the time of death.
4. Paying Debts and Taxes
The estate must pay any outstanding debts, such as credit card bills, mortgages, loans, and medical bills. Additionally, estate taxes (if applicable) and final income taxes must be filed and paid. The executor will use estate assets to pay these obligations before any distribution to beneficiaries can occur.
The probate court supervises the process to ensure creditors are paid appropriately, and the estate’s tax returns are filed.
5. Notifying Creditors and Heirs
In many jurisdictions, the executor is required to notify known creditors of the decedent's passing and give them a chance to submit claims against the estate. The executor must also notify heirs and beneficiaries that the probate process is underway and provide them with information about the estate.
6. Distributing Assets
After all debts and taxes have been settled, the remaining assets are distributed to the beneficiaries according to the terms of the will (or the state's intestate laws if there is no will). If there are any disputes over the will or the distribution of assets, the probate court may be involved in resolving them.
7. Closing the Estate
Once all debts, taxes, and distributions are completed, the executor submits a final accounting to the court. If the court is satisfied that everything has been handled properly, the estate is officially closed, and the executor's responsibilities end.
How Long Does Probate Take?
The probate process can vary widely in terms of duration, depending on the size and complexity of the estate, the state where the probate occurs, and whether there are disputes. In general, probate can take several months to a few years.
Is Probate Always Necessary?
Probate is often necessary when there is a will, the estate is large, or there are complications in distributing assets. However, certain assets may not need to go through probate, such as:
- Jointly held property (like real estate or bank accounts)
- Assets with named beneficiaries (like life insurance policies, retirement accounts, or pay-on-death bank accounts)
- Trusts (assets held in a trust typically do not go through probate)
In some cases, small estates may qualify for a simplified probate process or an expedited version, which can speed up the procedure.
Can Probate Be Avoided?
There are several ways to potentially avoid or minimize the need for probate, such as:
- Living Trusts: Assets placed in a revocable living trust can avoid probate because they are not part of the decedent’s estate when they pass away. The trustee can distribute assets according to the trust’s instructions without going through probate.
- Joint Ownership: Assets held in joint ownership with rights of survivorship automatically pass to the surviving owner, bypassing probate.
- Beneficiary Designations: Certain assets, like life insurance or retirement accounts, allow the owner to designate beneficiaries. These assets go directly to the beneficiary without probate.
Estate planning strategies like creating a revocable living trust, designating beneficiaries, and joint ownership can help streamline the transfer of assets and avoid probate, saving time and money for the heirs.
Guardianship
What is a Guardian?
When a relative or loved one is having difficulty taking care of him or herself, it may be necessary for someone to obtain legal permission to help. This is done through the probate court, which is responsible for appointing guardians for incapacitated adults and minors who cannot make important decisions about themselves on their own. The guardian is a legally appointed individual who makes decisions regarding the person's health and personal life, such as whether to receive a certain medical treatment. This person is appointed to protect an individual's interests when he or she cannot do so themselves. In these cases, a judge must decide whether the person in question has a mental, physical, or legal limitation which warrants the need a guardian to be appointed.
Who Needs a Guardian?
An adult may need a guardian when the person in question loses the ability to take care of him or her self and make informed decisions, usually due to incapacity or illness. Incapacity can occur when an individual is impaired for reasons including, mental illness, mental deficiency, physical disability or illness, or some other cause. The extent of power or control given to a guardian can vary based on the level of incapacity. If the individual is only partially incapacitated, in that they can still perform certain necessary tasks, a limited guardian may be appointed. In this case, the guardian is only given the rights, powers, and duties specifically listed by the court. A full guardian, however, has complete control and care over an incapacitated individual.
Guardians may also be appointed for minors, in usually in the form of full guardianship, in which case the guardian for has the same powers and duties that a parent has over their children. Guardians may be appointed for minors in cases where the child loses their parents, has parents who are unable to provide the necessary care for the minor, or if a caregiver is needed to take care of a child with special needs.
How to Apply for Guardianship
The guardianship process can be initiated either by the individual who needs assistance or by someone concerned about that person’s well-being. To begin, a petition outlining the reasons for the guardianship must be filed with the probate court in the county where the individual resides or is currently located. After the petition is submitted, the court will schedule a hearing where a judge will decide if a guardian is necessary. This legal process can be emotionally challenging and may involve legal disputes or difficulties obtaining guardianship. At Squires Estate Planning, we are committed to supporting you throughout the guardianship process, offering the legal guidance and assistance you need every step of the way.
Conservatorship
What is a Conservator?
Similar to a guardian, a conservator is appointed when an individual lacks the legal capacity to take care of oneself and make necessary decisions. The same person may serve as both the guardian and conservator, or a different person can be appointed for each role. A conservator may be needed if an individual is no longer able to handle their own financial affairs responsibly. Signs your loved one may need a conservator include forgetting to pay bills, making unexplained financial decisions, or falling victim financial scams or identity theft. A conservator takes care of an individual's financial affairs, such as paying bills and making other informed financial decisions on their behalf. They have the power to handle and make payments from all assets held on behalf of the protected individual.
How is a Conservator Appointed?
A petition for the appointment of a conservator may be initiated by an individual who is requesting protection, a person who has interest in that person's welfare or estate, or by a person who has been adversely affected by ineffective management of property or affairs. A conservator can be an individual, corporation, or professional conservator. The petition must be brought to the probate court in the county where the individual lives. The court will schedule a hearing and review the evidence to establish if there is a need for a conservator. In both guardianship and conservator cases, the individuals acting in these roles must promote the well-being and best interest of the protected person. Their roles will last until the court officially ends it and they will be required to file annual paperwork keeping the court and other interested parties informed.