A Living Will provides legally sufficient directions medical
providers to carry out your specific wishes regarding health
care matters, or empowers one or more trusted persons to
make medical decisions, so that if you ever are unable to
provide the directions yourself, your medical providers will
know when you wish to authorize heroic measures and
when you would prefer that life sustaining machines be
shut down (pull the plug). Many medical providers require a
person who will undergo certain types of medical procedures
to have a copy of your Living Will on file with them.
The legal process of transferring of property upon a person's death is covered under "Probate Law." Although probate customs and laws have changed over time, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.
Today the probate process is a court-supervised process that is designed to sort out the transfer of a person's property at death. Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and "payable on death" bank accounts). A common expression you may have heard is "probating a will." This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. What is often taught about the probate process is how to avoid it. The movement to avoid probate is primarily motivated by the desire to avoid probate fees. It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate.
The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent's property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested. The basic process of probating an estate includes:
Collecting all probate property of the decedent; Paying all debts, claims and taxes owed by the estate; Collecting all rights to income, dividends, etc.; Settling any disputes; and Distributing or transferring the remaining property to the heirs.
Usually, the decedent names a person (executor) to take over the management of his or her affairs upon death. If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate. The administrator will fulfill many of the same duties listed above.
Typically, people may leave property to any person they wish, and may make such designations in their will. However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent's wishes may have to be overridden by the court. For example, in most states, a spouse is entitled to a certain amount of property. Furthermore, creditors may have a claim on the property of the estate. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate. The more complex and sizable the estate, the longer and more time-consuming this process can be.
The probate process itself also carries with it a number of costs that are usually paid out of estate assets. These costs include: Fees of the personal representative; Attorneys' fees; and Court costs.
Estate Planning is more than just a simple Will. It also typically protects your wealth and assets by minimizing potential taxes and fees, sets up contingency planning to make sure your wishes regarding health care treatment are followed, manages and administers your estate and appropriately distributes your assets to your intended heirs.
Only an attorney who regularly practices in the fields of wills, trusts, probate and estate planning is able to provide you with really sound legal advice as you put your estate plan into place. At Moulton & Long PLLC, when you speak with an attorney, you will get answers to your questions. If we are unable to provide what you need due to the special factors of your estate, we will direct you to those individuals with whom we have a professional and trusted relationship and with whom we will work closely. These individuals work almost exclusively in the field, are extremely knowledgeable regarding the intricacies involved and can guide you in making decisions regarding your specific needs.