Losing a loved one is a sad and challenging event. In the aftermath of a loved one’s passing, it oftentimes is necessary to undertake what is known as the probate process in order to deal with that person’s estate. With this in mind, there are some essential elements associated with the probate process that are crucial to understand.
The Probate Process: Addressing Assets
On the surface, the probate process can seem complicated. In fact, when distilled to its essence, the probate process addresses a number of basic tasks in the aftermath of a person’s death. These include:
One of the primary tasks associated with the probate process is transferring the ownership of assets from the person who has passed away to his or her heirs or beneficiaries. This occurs in one of two different ways.
In some cases, a person dies with a last will and testament. The will governs how the property is to be distributed among heirs or beneficiaries.
In other instances, a person does not have a last will and testament when he or she dies. In those situations, the laws of the commonwealth of Pennsylvania govern the manner in which the assets of the deceased individual are distributed among the heirs or beneficiaries.
The Probate Process: Addressing Debts
The probate process is also designed to address the debts accumulated by the individual who has died. These debts oftentimes include those associated with that person’s law illness and death itself.
Valid debts must be paid first. Only after the debts are paid, including taxes, can a determination be made as to what assets are available to be distributed to the heirs of beneficiaries.
Validity of the Will
Another element in some probate proceedings is validating the will or determining whether the will meets the requirements of the laws of the commonwealth of Pennsylvania. If the will is deemed not to be valid, the laws of Pennsylvania will then govern how the assets are distributed.
Retaining a Pennsylvania Probate Lawyer
When facing the prospect of the probate process, retaining an experienced attorney is a wise course of action to take. A Pennsylvania probate lawyer will schedule an initial consultation at no cost to the prospective client.
The term revocable living trust typically refers to a trust that is created during the lifetime of a particular individual, according to the American Bar Association. At its essence, a revocable living trust is based on a legal instrument through which certain assets are transferred to the ownership of the trust itself.
A trustee is designated within the trust instrument itself. The trustee is the individual designated to manage the affairs of the trust on behalf of the beneficiary or beneficiaries. The trust instrument also identifies that individual or those individuals who are the beneficiaries of the trust. As the term suggests, a beneficiary is an individual who benefits from the trust. The creator of the trust can be a beneficiary of the trust. Successor beneficiaries can be designated who enjoy the benefits of the trust after the initial beneficiary dies.
A key element of a revocable living trust is that the creator is able to make changes to it during the course of his or her lifetime. The creator can change any of the specific terms included within the instrument. Indeed, if the creator so desires, he or she can eliminate the revocable living trust.
Probate and a Revocable Living Trust
One of the primary reasons for the creation of a revocable living trust is that it permits the probate process to be bypassed upon the death of the creator of the trust or the death of a trust beneficiary. Bypassing probate saves time and money in the final analysis.
Taxes and a Revocable Living Trust
What a revocable living trust does not do is permit tax avoidance. Although probate may be avoided with this type off trust, taxes must be paid as owed.
Revocable Living Trust Versus Irrevocable Living Trust
As the monikers associated with these two types of trusts indicate, revocability is the key distinction between these two types of trusts. The creator can terminate a revocable derivation. On the other hand, once a creator appropriately executes an irrevocable trust instrument, that trust generally cannot be altered or terminated.
A skilled, experienced Pennsylvania estate attorney can assist a person in deciding on whether or not a revocable living trust is a suitable estate planning structure. Typically, there is no charge for an initial consultation to discuss a revocable living trust.
A key decision when preparing a will is the designation of an executor. The executor is the person you select to oversee the provisions of your will after you pass. This is the person designated to make sure the directives you place in a will are carried out. Because of the importance of this position, there are a number of factors you must consider when selecting an executor for your will.
A Person You Trust
A fundamental consideration is selecting someone you trust to serve in this capacity. You need to select a person that you are confident will carry out your wishes and not act in a manner inconsistent with them.
Open Discussion with a Possible Executor
You must be up front and discuss your desire to select a particular person as your executor. A good number of people fail to take this step. By not engaging in open discussion, a person may not know of your decision to appoint him or her to serve in this capacity. This type of obligation is not something you want to surprise someone with after you die.
Review Prospect’s Background
Ultimately, whoever you nominate in a will to be your executor must be approved by the court. The court does give significant deference to the individual nominated in a will. However, there can be instances in which a court may not approve your nominee. For example, if you select someone that has a rather significant criminal history involving fraud, deceit or theft, a court may be highly reluctant to approve that individual to serve as your estate’s executor.
Family Member Versus Professional
A common strategy is to appoint a close family member to serve as the executor of an estate. That certainly is one of your options – but it is not the only course you can take.
An attorney can be designated as your executor. Designated a legal professional to serve in this capacity can be a wise course if an estate is particularly complex. Legal assistance will be needed anyway; thus, designated an attorney as the executor makes sense in such a situation.
Backup Executor
If for some reason the person you designate as executor is not able to serve in this role, you need to designate a backup in your will. By designating a successor executor, you place yourself in the best position to ensure your interests will be protected after you pass away.
If you are like many individuals, you’ve given thought to the need for comprehensive estate planning, but you’ve done nothing about it. You’ve talked about comprehensive estate planning, but haven’t spoken with an estate attorney. There are five key facts about comprehensive estate planning to bear in mind. Considering these facts may motivate you to schedule a prompt appointment with an experienced estate lawyer.
Comprehensive Estate Planning is Not Just for Wealthy Individuals
A common misconception is that comprehensive estate planning is only for wealthy, well-healed folks. In reality, nearly everyone benefits from comprehensive estate planning. The starting point is scheduling a consultation with an estate lawyer. There is no charge for an initial consult regarding the need for an estate plan.
Absent Comprehensive Estate Planning, the State Runs the Show
You must keep in mind that if you do not estate plan, the state runs the show when you pass away. Without an estate plan, the laws of the commonwealth of Pennsylvania dictate what happens to your property when you die. Your wishes, whatever they may be, become complete irrelevant.
Proper Comprehensive Estate Planning Can Protect Children Financially
If you have minor children, or if you have adult children who may not be the best money managers, estate planning is a must. Through a properly crafted estate plan, you ensure that your minor children are taken care of after you pass. A solid estate plan ensures that your adult children are taken care of but that they do not waste money or assets in a frivolous manner.
Comprehensive Estate Planning is Crucial for Non-Traditional Relationships
If you are in a non-traditional relationship, you must develop an estate plan. For example, if you live with your significant other, but are not married, you must have an estate plan in place. Once again, the absence of an estate plan in this type of situation results in the laws of the commonwealth of Pennsylvania determining where your property goes after death. Your significant other can be effectively locked out of receiving your property if you die without a suitable estate plan in place.
It’s Never Too Early to Start Estate Planning
You are never too young and it is never too early to begin comprehensive estate planning. Make an appointment with a qualified estate attorney today to schedule a no-cost initial consultation to analyze you specific needs, goals and objectives.
There is a long overused cliché: The only thing certain and life is death and taxes. When it comes to death and dying, there are some interesting estate and probate facts worth pondering.
The Origin of “Last Will and Testament”
One of the more interesting estate and probate facts is the origin of the term “last will and testament.” Historically, will was utilized to distribute real estate when a person died. Testament was the term associated with distributing personal property after death.
Estate and Probate Facts: Longest Will Probated
The longest will ever probated by a court was in the United Kingdom. The estate itself was rather small, having a value of about $100,000. The will ran 1,066 pages and almost 96,000 words.
Estate and Probate Facts: Shortest Wills in Modern Times
There are two wills tied for the shortest in modern times, one written in India, the other in Germany. One will read: “All to wife.” The other will read: “All to son.”
The Actor and the Skull
An actor named Del Close includes a provision in his will that donated his skull to Chicago’s Goodman Theatre. His intention was to play Yorick in the Shakespeare play Hamlet after his death. (Yorick appears only as a skull in the iconic play.) In the end, no one would agree to remove the head from the dead actor’s body and the bequest remained unfulfilled.
The Oldest Will in History
The oldest known will in history dates back to 2548 B.C. in Egypt. A man named Uah left all of his property to his wife Teta.
Living Wills – Something Relatively New
Although wills have been around for centuries, living wills are of fairly recent origin. The living will was first permitted in the United States in the state of California in 1976.
Estate and Probate Facts: Howard Hughes
One of the wealthiest – and arguably most unusual – Americans in recent history died without a will. The lack of a will caused considerable chaos in the aftermath of the eccentric billionaire’s passing.
Retain an Estate Attorney
Perhaps the most important estate and probate fact is the need to retain a qualified, experienced estate and probate attorney. Proactive estate planning is the best course to take to ensure a person’s wishes are carried out at the time of death.
A key component of estate planning for many individuals is the writing of a last will and testament. There are specific protocols that must be followed in order to execute a will in a proper manner.
State Law Governs Wills
The laws of each individual state governs the manner in which a last will and testament is to be executed or signed. With that said, there are some general will execution protocols that are followed across the United States, including in the commonwealth of Pennsylvania.
Sound Mind and Body
A person intent on signing a will must be of sound mind and body. What this means is that an individual signing a will must be in a proper physical and mental condition. In addition, in Pennsylvania, a person must be at least 18-years old to execute will.
A basic test exists to ascertain if a person truly is of sound mind and body, fit to sign a will. The person seeking to execute a will must understand that signing the will is in fact the task at hand. The person must also have a general understanding of the nature and extent of his or her assets, the property that is subject to the will. The individual signing a will must understand how his or her assets are being distributed or allocated pursuant to the terms of the instrument.
As an aside, a person must be sober at the time of the signing of a will. The individual cannot be under the influence of any mind-altering substance.
Notary Public
A will must be executed in front of a notary public, or a similar type of official. For example, a will can be signed in front of a judge in most jurisdictions. The notary public authenticates the person signing the will did so in a manner consistent with the laws of Pennsylvania.
Witnesses
The one area in which there is some more significant variation from one state to another is in regard to the witnesses necessary for a will signing. The witnesses must be adults and physically and mentally competent at the time of the will signing. Other types of will contests can happen as well. A last will and testament in Pennsylvania must be witnessed by two individuals.