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Estate Planning – Probate and Will Law
Creating a Will
Having a valid will is an important family responsibility. The laws regarding how wills are to be signed are complex, and seemingly minor errors can invalidate a will. Moreover, it is difficult to write a will which contains no ambiguity, and which considers how circumstances may unexpectedly change in the future. Although you may think this is something that you can draft yourself, our experience is that attempting to prepare a will without a lawyer can end up being a very expensive and emotionally stressful problem for your loved ones when you die. Your will or estate plan also needs to carefully consider tax considerations, because large estates can be subject to very high estate taxes (“death taxes”) and even small estates need to consider the income tax consequences that occur when your home or other assets are passed to your heirs and eventually sold. At the same time your will is prepared, you may wish to have a document prepared which sets forth your wishes about how health care matters should be handled when you are not capable of handling them yourself. This is known as an Advance Directive or Durable Power of Attorney for Health Care. Under certain circumstances, you may also want to have a financial Power of Attorney prepared so that someone you trust can handle legal matters if you are mentally disabled. This avoids the necessity of a going to court and having a guardian appointed, which can itself be an expensive process and which imposes continuing yearly obligations on the person appointed, which obligations you may want to avoid. This is a powerful document, and you will need to be careful about whether to have one prepared and to whom it is given; we can advise you of the nuances concerning powers of attorney. We at Kohn Rath Danon Lynch & Scharf, LLP, are experienced at preparing wills and dealing with all aspects of estate planning. We can provide sound legal advice and empathetic support when handling these very private affairs. If you have any legal worries that are associated with probate or estate planning, please get in touch with our estate planning, probate, and will attorneys at (802) 482-2905. There is no obligation.
Estate Administration – The Probate Process
When someone you love passes away, their estate usually goes through a court-managed process referred to as probate (sometimes called estate administration), wherein the belongings of the recently deceased are administered and disbursed in the manner intended by the deceased. If your loved-one owned their assets outright and had entered into a well-planned and well-funded living trust, it is unlikely that any time in probate will be called for, although the replacement trustee will now need to manage the distribution of the property and other belongings of the deceased. The period of time that is necessary to complete the probate of any individual estate will greatly depending on the size of the individual’s estate and on the complexity of the estate. Let the probate attorneys at Kohn Rath Danon Lynch & Scharf, LLP assist you in understanding the nuances of the legal system and in making certain that you have met all the legal requirements. Let us aid you in overseeing a loved one’s estate. Schedule a no-obligation consultation with one of our probate attorneys today.
Every estate is different, and so every probate case is also different, but the majority of them include the following actions:
- The filing of a petition with the appropriate probate court;
- A notice to any heirs listed in the will, or to any lawful heirs in the event that there is no will;
- A petition to designate an Executor (when there is a will) or Administrator for the deceased’s estate;
- The inventory and evaluation of all of the estate assets by the Executor/Administrator;
- The payment of all debt held by the estate to its legitimate creditors;
- The sale of any estate assets;
- The payment of all estate taxes, if applicable to the situation; and
- The final allocation of the assets to their designated heirs.
Frequently Asked Questions
What if someone contests the will?
An objection or contest to a will does sometimes happen during the probate process. These contests are often costly and take an exceptional amount of time to resolve. In order to legally object to the contents of a will, the person raising the objection must have the necessary legal position to do so. This would include spouses, children, creditors, and anyone who is directly named in the will. Will contests can sometimes occur when, for instance, siblings are to inherit unequal shares of the estate according to the deceased’s will, or when the distribution of the deceased’s assets changes from a previous will to a current will. On top of arguments over the actual distributions, objections to a will might include a dispute over the person who has been chosen to serve as the Executor.
Does probate control all of the property of the deceased?
The primary function of the probate process is the transfer of titles from the name of the deceased into the names of the heirs. There are several kinds of assets that are deemed non-probate assets and, as such, are not required to go through probate court. These assets include, but are not limited, to:
- Property on which the deceased owned the title under “joint tenants with right of survivorship”, or as tenants by the entirety (which is essentially the same thing as joint tenants but is used for married couples). According to the law, this type of property passes to the co-owners and does not have to go through probate;
- Retirement accounts, such as 401(k) and IRA accounts, that have designated beneficiaries already listed on them;
- Life insurance policies with still living beneficiaries;
- Bank accounts with pay on death specifications or in trust for specifications; and
- Property that is owned by a living trust. The legal title to this property goes to the subsequent trustee without being required to go through probate.
Do I get paid for agreeing to be an Executor?
Executors of an estate may be compensated for any and all reasonable out-of-pocket expenditures that they incurred during the process of administering and distributing the estate of the deceased. In addition to this, the Executor could very well be entitled to collect certain types of fees for a specific case, contingent upon their time and previous experience. All fees of this nature have to be allowed by the Probate Court. The Executor of the estate is legally obligated to perform his or her trustee duties on part of the estate of the deceased with the utmost measure of honesty and could potentially be held responsible for the reckless management of any of the estate assets under his or her supervision. We strongly advise that, if you are the executor of an estate, you hire an attorney in order to guide you in your necessary duties and to offer any other assistance as needed.
How long does probate usually take? Is it expensive?
The expense and the length of time which probate might last can change considerably depending on a variety of different factors, like the worth and intricacy of the deceased’s estate, whether or not the deceased had a will, and the location of any property that was owned by the estate. Will disputes or contests with supposed creditors regarding the debts owed by the estate will also add a substantial expense and delay probate a great deal. The typical debits of an estate constitute items such as attorney fees, executor fees, court fees, accounting fees, and appraisal expenses, and at Kohn Rath Danon Lynch & Scharf, LLP, we do what we can to minimize such expenses. The majority of estates are resolved through probate court in roughly six months to a year and a half, provided that there is no lawsuit involved. — Here at the law offices of Kohn Rath Danon Lynch & Scharf, LLP, we regularly counsel estate executors and trustees in both the routine and complicated aspects of estate administration. We also serve individual beneficiaries and heirs in suits against estates, including the mismanagement of trusts, the contestation of a will, the squandering of assets, and any violation of the duties of a trustee. If someone has left you responsible for helping with the probate or management of an estate, we can assist in handling all legal aspects. We always strive to minimize any difficulty for you and to provide assistance promptly and accurately. If you have any legal worries that are associated with probate or estate administration, or with estate planning of any nature, please contact the probate, estate, and will attorneys of Kohn Rath Danon Lynch & Scharf, LLP, at (802) 482-2905. There is no obligation.
Kohn Rath Danon Lynch & Scharf, LLP is a Vermont law firm located in the Town of Hinesburg, providing a broad and comprehensive array of legal services to our clients. Our attorneys have experience in many practice areas of the law. (Click on the name of a team member for additional information)