Mark John Malousek Law Office

In many cases, surviving relatives or heirs of a decedent are free to begin the probate process whenever they feel ready. It might be something they want to take care of as soon as possible or something they need to wait a bit to handle while they deal with their emotions. Keep in mind, there are some situations in which beginning probate too soon could expose an estate to creditor claims that would otherwise be avoidable.

Probate is a legal process of distributing assets after a person dies. The process includes: • Proving to the court that the deceased’s will is valid • Identifying and inventorying assets of the deceased • Property appraisal • Paying debts, taxes, attorney’s and court fees • Distributing what remains after debts and taxes are paid The process is typically standard, but it can be complex when a person’s estate is complicated or a will is called into question.

In most cases, you will need only the actual will and a statement from one or more of the witnesses to the will. This can be supplied either by a notarized statement, called a “self-proving affidavit,” which was signed at the time of witnessing the will, a sworn statement signed by a witness now, or court testimony provided by a witness. The attorney who helped to create the will often has all of the needed documents on file to help with the probate process.

No, all will do not go through probate. The only time probate is necessary is when you want to transfer ownership of assets owned to your living beneficiaries. In many states, it is possible to achieve this through simplified procedures if an estate is smaller. In cases of larger, more complex estates, probate is usually required. This is especially true when there aremultiple assets and multiple beneficiaries, but even in these cases it is sometimes possible to avoid probate.

A person’s probate estate is the entirety of his or her belongings that are distributed based on the state’s laws upon his or her death. It could include all real and personal property, as well as other non-physical assets. It is possible that not all of a person’s assets will need to pass through probate. For instance, non-probate assets do not go through the probate process and instead pass directly to the deceased’s heirs.

A living will, also known as an advance healthcare directive, is a legal tool that allows someone to specify the actions that should be taken regarding his or her health if that person is no longer able to make those decisions for himself due to illness or incapacity. Living wills must be written and legally sound. The document serves as a means by which to know what a person wants when they cannot speak for themselves.

Yes, but the process tends to be more complicated when an heir is missing. Laws regarding missing heirs vary from state to state, but in general, a genuine effort must be made to find the heir. If the heir cannot be found, property is held in trust for a length of time that is determined based on state law. It then passes to the next heir in line that is locatable, but if nobody is next in line, legal ownership transfers to the state.

In most cases, probate can begin immediately or at any time after the testator's death up until the deadline, which varies from state to state. Typically, this deadline tends to be about three to five years. Probate usually takes a few months, but can be longer if property in the estate takes time to sell or when there are complicated tax issues. When an estate is smaller, it cannot be filed until 30 days after death, but is complete upon filing.

If you die without a will, also known as dying intestate, the state decides how property is distributed. Laws vary from state to state, but in community property states, the deceased’s community property is given to the spouse. Any property owned in joint tenancy automatically goes to the joint owner and any property held in a trust goes to the beneficiaries of that trust. The probate process tends to take longer and be more complicated when there is no will.

Jointly owned property can be a decent estate planning tool for some people, but it does not work for everyone. Choosing to use this tool can be troublesome because: • It creates risk. Joint owners have complete access and can use the funds for their own purposes. These funds are also available to the creditors of all joint owners. • It could lead to inequity among heirs. • When one person dies before another and property is held jointly, it can create confusion and chaos.