Archive for the ‘Finance’ Category
Probate Court: Inheritance And Equity Law
Probate court is a specialized court which mainly attends to matters regarding the estate of a person who has died. Depending on the state in which you reside, this type of court might also be referred to as Orphans Court, Court of Equity, Court of Ordinary or Surrogate Court.
The primary function of Probate Court is to make certain the assets of the decedent are properly disbursed to beneficiaries. A probate judge oversees the estate to enforce directives left by the decedent in their Last Will and Testament.
If a person dies Intestate (without leaving a Will), the probate judge assigns someone to administer the estate. Typically, this is a family member. However, in cases where no family members exist or cannot be located, the judge can authorize a court appointed estate executor.
Probate courts came into existence in the United State in 1784, with the first court established in Massachusetts. While several amendments have been made to the Constitution in regard to the authority of probate court, its main function has always been to provide distribution of assets and enforce equity law.
Equity law refers to any order which directs an individual to act or refrain from acting. The difference between equity law and laws regulated by courts of law is that court regulated laws pertain to legal doctrines or statutes, while equity laws are regulated by general guides known as “maxims of equity.”
Within the United States, probate laws are regulated by each individual state. Although these laws vary from state to state, the vast majority require a decedent’s estate to be overseen by an appointed estate executor or administrator. Estate executors are responsible for filing necessary documents including inventory, accounting and tax forms and the distribution of probatable assets to beneficiaries and heirs.
In addition to estate administration, probate courts oversee cases which require the enforcement of equity law. Common equity law cases include the institution of guardianship for an individual found to be incompetent of handling their affairs. Probate courts also oversee involuntary commitment of mentally ill patients to a state hospital.
Adoptions are oftentimes handled through the probate court system. Generally, individuals who engage in the adoption of a minor child are assigned an Assessor who will visit the home and gather information about the adoptive parents and living conditions. In most states it is mandatory for adoptive parents to appear in Probate Court for the final hearing.
Oftentimes, birth certificates are kept on file through the Probate Court. Depending on the state and jurisdiction of the probate court, individuals seeking information about unrecorded births, lost or destroyed birth certificates, or certificates which have not been properly or accurately files must contact the Probate Court to obtain or change information.
Probate courts also oversee applications for legal changes of name and marriage licenses. Typically, there is a nominal fee charged at filing and the process usually takes four to six weeks.
Last, but not least, probate courts oversee civil actions relating to probate including contesting of a Will, determination of beneficiaries, and presumption of death. Although most cases presented in probate court do not require a jury, civil action cases typically require a jury trial for proper disposition.
By: Simon Volkov
About the Author:
The primary function of Probate Court is to make certain the assets of the decedent are properly disbursed to beneficiaries. A probate judge oversees the estate to enforce directives left by the decedent in their Last Will and Testament.
If a person dies Intestate (without leaving a Will), the probate judge assigns someone to administer the estate. Typically, this is a family member. However, in cases where no family members exist or cannot be located, the judge can authorize a court appointed estate executor.
Probate courts came into existence in the United State in 1784, with the first court established in Massachusetts. While several amendments have been made to the Constitution in regard to the authority of probate court, its main function has always been to provide distribution of assets and enforce equity law.
Equity law refers to any order which directs an individual to act or refrain from acting. The difference between equity law and laws regulated by courts of law is that court regulated laws pertain to legal doctrines or statutes, while equity laws are regulated by general guides known as “maxims of equity.”
Within the United States, probate laws are regulated by each individual state. Although these laws vary from state to state, the vast majority require a decedent’s estate to be overseen by an appointed estate executor or administrator. Estate executors are responsible for filing necessary documents including inventory, accounting and tax forms and the distribution of probatable assets to beneficiaries and heirs.
In addition to estate administration, probate courts oversee cases which require the enforcement of equity law. Common equity law cases include the institution of guardianship for an individual found to be incompetent of handling their affairs. Probate courts also oversee involuntary commitment of mentally ill patients to a state hospital.
Adoptions are oftentimes handled through the probate court system. Generally, individuals who engage in the adoption of a minor child are assigned an Assessor who will visit the home and gather information about the adoptive parents and living conditions. In most states it is mandatory for adoptive parents to appear in Probate Court for the final hearing.
Oftentimes, birth certificates are kept on file through the Probate Court. Depending on the state and jurisdiction of the probate court, individuals seeking information about unrecorded births, lost or destroyed birth certificates, or certificates which have not been properly or accurately files must contact the Probate Court to obtain or change information.
Probate courts also oversee applications for legal changes of name and marriage licenses. Typically, there is a nominal fee charged at filing and the process usually takes four to six weeks.
Last, but not least, probate courts oversee civil actions relating to probate including contesting of a Will, determination of beneficiaries, and presumption of death. Although most cases presented in probate court do not require a jury, civil action cases typically require a jury trial for proper disposition.
By: Simon Volkov
About the Author:
Simon Volkov is a private investor who specializes in helping individuals liquidate their assets. From forthcoming Inheritance windfalls and understanding Probate”>http://www.simonvolkov.com/articles/probate/”>Probate Court processes, Simon Volkov offers a host of solutions to beneficiaries and heirs. Learn more by visiting www.SimonVolkov.com.
Freddy Brooker
To Avoid Probate You Need a Living Trust Besides a Will
Ensuring that a client’s estate does not go through probate is one of the main goals of estate planning. Why? Because probate costs money, takes time, and can cause major aggravation.
First, here are some of the important terms in estate planning: Living Trust – a trust set up during a person’s lifetime (during which the trust may be changed or revoked) to avoid probate.
Probate – the legal process by which a will is proved to be valid and binding (can be a lengthy and expensive process).
Will – a formal legal document directing the disposition of assets upon death.
Why it is important for an estate to avoid probate: In the May 2008 American Bar Association Journal an attorney in Chicago says: “Probate in Illinois is relatively painless, so long as there is no litigation associated with it. Probate requires only two court appearances, and the decision-making does not require court approval, so long as there is no litigation or upset heirs interfering with the administration of the estate.” There can easily be totally unexpected upset heirs interfering with the administration of the estate. And even just paying an attorney’s hourly rate for two court appearances and various court filings can cost heirs a great deal of money.
Probate fees can take a big bite out of a small estate: Attorney’s and executor’s probate fees are set by law in some states, such as in California. The estate’s attorney in California will be paid $13,000 for a small estate of $500,000, which with California housing prices is a small estate. And if the executor doesn’t waive the fee, he or she will also receive a fee of $13,000.
That’s right, $26,000 in fees for an estate that might consist of only a small residence! Plus court filing fees, probate referee fees, certified copy fees and aggravation too much to mention.
Privacy issue – probate is a public process: Another problem with probate is that it is a public process. A will becomes part of the records at the courthouse, and anybody who wants to can read it. If there’s a contentious relative being left out of a will, or if privacy is valued, probate should definitely be avoided.
A living trust solves these problems: What is needed so that an estate doesn’t have to go through the legal obstacles of probate? A will is not enough to avoid probate. A living trust is needed.
A living trust has the same instructions for the disposition of property that would be expected in a will. But since the trust is a pre-existing legal entity, it continues after death. Therefore, the estate does not have to go through probate since there are no assets that have to be “proved.”
Pour-over will takes care of any assets not transferred to the trust: A will is still needed in case there are any assets that have not been transferred to the trust. For example, the proceeds of a wrongful death lawsuit would be picked up by the will because these proceeds didn’t exist at the time the trust was set up. The will “pours” everything it covers into the trust, which is why it is known as a “pour-over” will.
The above information is only considerations for you to discuss with your own estate planning attorney; the information is NOT legal advice. The providing of this material does not establish an attorney-client relationship.
By: Mitchell Miller
About the Author:
First, here are some of the important terms in estate planning: Living Trust – a trust set up during a person’s lifetime (during which the trust may be changed or revoked) to avoid probate.
Probate – the legal process by which a will is proved to be valid and binding (can be a lengthy and expensive process).
Will – a formal legal document directing the disposition of assets upon death.
Why it is important for an estate to avoid probate: In the May 2008 American Bar Association Journal an attorney in Chicago says: “Probate in Illinois is relatively painless, so long as there is no litigation associated with it. Probate requires only two court appearances, and the decision-making does not require court approval, so long as there is no litigation or upset heirs interfering with the administration of the estate.” There can easily be totally unexpected upset heirs interfering with the administration of the estate. And even just paying an attorney’s hourly rate for two court appearances and various court filings can cost heirs a great deal of money.
Probate fees can take a big bite out of a small estate: Attorney’s and executor’s probate fees are set by law in some states, such as in California. The estate’s attorney in California will be paid $13,000 for a small estate of $500,000, which with California housing prices is a small estate. And if the executor doesn’t waive the fee, he or she will also receive a fee of $13,000.
That’s right, $26,000 in fees for an estate that might consist of only a small residence! Plus court filing fees, probate referee fees, certified copy fees and aggravation too much to mention.
Privacy issue – probate is a public process: Another problem with probate is that it is a public process. A will becomes part of the records at the courthouse, and anybody who wants to can read it. If there’s a contentious relative being left out of a will, or if privacy is valued, probate should definitely be avoided.
A living trust solves these problems: What is needed so that an estate doesn’t have to go through the legal obstacles of probate? A will is not enough to avoid probate. A living trust is needed.
A living trust has the same instructions for the disposition of property that would be expected in a will. But since the trust is a pre-existing legal entity, it continues after death. Therefore, the estate does not have to go through probate since there are no assets that have to be “proved.”
Pour-over will takes care of any assets not transferred to the trust: A will is still needed in case there are any assets that have not been transferred to the trust. For example, the proceeds of a wrongful death lawsuit would be picked up by the will because these proceeds didn’t exist at the time the trust was set up. The will “pours” everything it covers into the trust, which is why it is known as a “pour-over” will.
The above information is only considerations for you to discuss with your own estate planning attorney; the information is NOT legal advice. The providing of this material does not establish an attorney-client relationship.
By: Mitchell Miller
About the Author:
Watch the short free video on Mitchell R. Miller’s information site at http://www.estateplanningforyou.com to learn why an estate plan needs to be reviewed every 4-5 years. In addition, get a free copy of 4 Important Questions You Should Ask About a Living Trust prepared by Mitchell R. Miller – a tax, trust and estate attorney for over 30 years. EstatePlanningforYou.com is a subsidiary of http://www.millermosaic.com.
Margo Turnquist