When someone close to you dies, it is usually an emotionally challenging time. In addition to the grief you are going through, you may also need to deal with the probate of the person’s estate. Probate can be confusing to a novice, but must be accomplished. In order to make the process a bit less daunting, the following probate definitions may help.

• Probate Court—The court that handles matters concerning wills, trusts and estates. A probate court may also handle guardianships and conservatorships. Most court systems have a specific court designated to handle probate matters, but there are exceptions to this general rule.
• Small Estates—Sometimes, an estate is not required to go through formal probate. In this case, there may be a special process, known as small estate administration, small estate affidavits, or something similar that can be used. Qualifying for a small estate process is usually based on the size and/or value of the estate.
• Decedent – Person who died.
• Testator – Person who executed a Will
• Holographic Will – A handwritten Will.
• Intestate—Term used to describe an estate when a decedent did not leave behind a valid Last Will and Testament.
• Testate – Dying with a valid Will in place.
• Estate – Everything a person owns at the time of death, including real and person as well as tangible and intangible property.
• Codicil – Amendment or attachment to an existing Will.
• Executor – Person named in the Last Will and Testament to oversee the probate of the Will.
• Personal Representative – Person appointed by a court to oversee the probate of the estate when a Will was not executed
• Trust – When someone places property in the hands of another person for the benefit of someone.
• Trustee – Person who administers a trust.
• Heir – Person who stands to inherit under the state’s intestate succession laws.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Probate is one of those legal concepts that no one really wants to talk about or understand because it usually means that someone close to you has died if you are involved in probate. The reality, however, is that you will probably be personally involved in the probate of someone’s estate at some point in your life. Having at least a basic understanding of the process will help you feel more comfortable about the process when the time comes. Although procedures and rules may differ somewhat among the states as well as depending on what type of probate is required, there are some basic concepts that typically apply to any probate.

The first phase of probate is to petition the court to begin the probate of the estate. At that time, the court must approve someone as the executor or personal representative. If a Last Will or Testament was executed prior to death, the person nominated in there will typically begin the process. If not, a close relative usually applies to the court. Ultimately, the court will approve someone or appoint someone.

Next, the decedent’s estate assets must be located and inventoried. Everything will essentially be frozen until the probate is completed or the court authorizes the release of an asset. The executor or PR must file a list of all assets and their values with the court.

The next phase requires that all creditors be notified of the probate. This is done by directly notifying known creditors and by publication for unknown creditors. Creditors will then files claims against the estate. The executor or PR will approve or deny the claims. Disputed claims will be litigated in court. Taxes must also be paid with estate assets.

Finally, the remaining assets will be transferred to the beneficiaries or heirs of the estate. If a Will was not left behind, the court will have to determine who the legal heirs are of the decedent in order to determine how the estate assets will be distributed.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Out of every 500 people in the United States between the ages of 25-44, one will pass away. So why is it that we do not start estate planning until we are close to retirement age? Regardless of age, retirement planning should be done as soon as possible to not only protect your assets, but your loved ones as well.

Estate Planning is Not Just for the Old

You do not have to be nearing retirement to get estate planning done. In fact, most estate planning attorneys recommend that when a person becomes an adult, they meet with an estate planning attorney and at least create a Will.

Estate Planning is Not Just about Dying

A lot of people assume estate planning means planning for death, but estate planning can also take care of situations where you are still alive, but need someone to care for you. With an estate plan you can create a plan for incapacitation and ensure that your estate is handled while you are unable to do so yourself.

Estate Planning Helps Avoid Probate

Without an estate plan, your assets go through Probate. Probate means that a judge will determine who receives your assets and how much. Typically, the court will only give away assets to blood relatives, which means friends and coworkers or even significant others will not receive any of your estate.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Did you know that Peter Jennings left behind an estate worth $50 million when he died? Are you curious about how much Whitney Houston was worth when she died? If you are, you will soon find out when her probate records are made public. Both of these very public figures who were worth millions of dollars made the mistake of relying on nothing more than a simple Last Will and Testament for estate planning.

There are a variety of reasons while people choose to create a more elaborate estate plan than just a simple Will. While a Will should provide the foundation for your estate plan, most people should not stop there. Decreasing estate taxes and avoiding probate are two of the most common reasons that people choose to include one or more trusts in their estate plan. Along with the fact that probate can be a long and costly process, probate records are also public record. In other words, everything that must be filed with the probate court can be requested by the public. This is why we know how much Peter Jennings was worth when he died and to whom he left his money. The same is true for Whitney Houston who despite being worth an estimated $115 million left behind nothing more than a simple Will when she died.

If privacy is important to you, talk to your estate planning attorney about incorporating a trust into your estate plan. Trusts do not go through probate, meaning that the information contained in a trust does not become public record.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Often, when an elderly family member dies, someone in family is charged with cleaning out the home. If a Last Will and Testament was left behind, the executor will be responsible for inventorying the contents of the home for the probate court and figuring out what needs to be done with everything left behind. If you are the one responsible for handling the contents of a deceased loved one’s home, you could find a treasure among the trash.

That is precisely what happened in the estate of John Hessian of Boston. The treasure, however, was almost lost forever. After his death, a cleaning crew was hired to go through his boxes of “junk”. Among those boxes was one full of old baseball cards, some of which dated back to the 40s. Thankfully, someone among the cleaning crew knew what he was looking at and the box was not thrown away. It turned out that the collection was worth over $1 million!

So when you go through your loved one’s property, don’t just toss those boxes that don’t seem to have anything of value in them. Have a professional estate appraisal or another professional take a look at what you find before you assume that it is all trash. People collect all types of things and many things increase in value as they age – even things that you might never imagine have any value. By taking the time to check out what you locate in the house, you and your family could find a valuable treasure among the trash!

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Most people spend a considerable amount of time deciding who will be the executor of their estate, but then fail to take the time to ensure that the executor can do his or her job well. The position of executor can be a time consuming, yet very important, position. Take the following steps now to make that job a little easier when the time comes.

1. Decide where your estate documents will be held. A safety deposit box at a bank can work, but your executor will need to be named on the account in most cases. Your bank will not likely allow access to the box absent proof that he or she is the executor. If your Will is in the box, then the proverbial “chicken or egg” dilemma begins. Another option is to purchase a fire proof safe for your home and give your executor a key or the combination.
2. Make copies of every document that your executor might need. Along with an original copy of your Last Will and Testament, this may include trust documents, titles and deeds, life insurance policies, investment statements, pre-paid funeral arrangements, and loan paperwork.
3. Along with copies, write out a list of all your assets, including account numbers, balances and where the asset is located. Make a corresponding list of debts
4. Make a list of passwords. In today’s digital age, we have passwords for everything from online banking to our Facebook account.
5. Write a letter or memorandum of wishes for your executor. This is not a legal document, but is simply intended to provide instructions or directions to the executor. It could include directions to a vacation property, a list of the stamps in your stamp collection, or provide words for your funeral. This is your chance to include anything that is not covered elsewhere in your estate plan.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

If you are the executor or administrator of an estate, you have numerous duties to perform while the estate makes its way through the probate or administration process. Along with inventorying the estate, valuing the estate assets and paying debts of the estate, you will be responsible for filing the appropriate tax returns on the estate. Part of that will require you to make sure that estate taxes have been paid.

Estate taxes can quickly eat away at the value of estate assets if proper estate planning was not done by the decedent. Each year, an estate tax exemption amount is available. The exemption amount is subject to change and does change on a regular basis. For example, the exemption amount for 2012 is $5 million; however, it is set to return to only $1 million for the following year. Estate assets in excess of the exemption amount of subject to the payment of estate taxes. The estate tax rate also changes regularly. Although at an unusually low rate for 2012, it is also set to return to its normally high rate for the following year.

If you are administering an estate for a decedent, you must make sure that all applicable taxes, both state and federal, or paid accurately and in a timely fashion. If you are uncertain what the estate tax obligation is, or how to apply the exclusion amount, be sure to consult with an estate planning attorney immediately.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

If you have recently lost a loved one, and have been elected to be the person who handles the estate, then you may have a number of questions and concerns about how to proceed. One of the most common questions is whether or not formal probate is required. The laws and procedures that will apply to that question are those from the state where the decedent was consider a resident at the time of death. Some basic information, however, applies in almost all circumstances.

Probate is the legal process that inventories and values the estate assets. It then makes sure all debts of the estate are paid before transferring any estate assets.

Formal probate can take many months to conclude. In the meantime, estate assets may be held up and inaccessible. Some assets though are not required to pass through formal probate such as life insurance benefits.

Most states allow for a shortened, less formal, probate process. Often known as small estate administration, this can save you both time and money.

The value of the estate and/or the type of assets involved in the estate will generally determine whether or not small estate administration is an option.

If the decedent failed to leave behind a Last Will and Testament, formal probate may be required to determine who the legal heirs are to the estate.

If you are uncertain about which type of probate is required, be sure to consult with an estate planning attorney immediately.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

One of the most common tools used when estate planning is a trust. Trusts come in many forms and are used for a variety of reasons. Often, a trust is used to avoid the probate process and/or to limit the tax consequences associated with the transfer of wealth. Just as a Last Will and Testament can be challenged, or contested, a trust can also be contested.

A trust basically allows the grantor to designate assets that will fund the trust and beneficiaries who will receive those assets. An individual, or corporation, is also appointed to be the trustee and oversee the administration of the trust. Unlike a Will, a trust is not required to pass through the probate process in most cases, meaning that the terms of the trust may not be made public. This does not, however, mean that the trust cannot be challenged.

Many of the same rules apply to the creation of a trust as apply to executing a Will. The grantor must be over the age of majority and of sound mind at the sign of creation. Additionally, the grantor cannot have been under duress or the victim of undue influence. Things like these can cause a trust to be invalidated by a court.

If you are concerned about the validity of a trust, contact your estate planning attorney to discuss what your legal options are and how best to proceed. As with most other estate planning matters, there are time limits that must be adhered to if you plan to contest the trust.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Most people take the time to sit down and discuss the possibility of naming someone as the executor of their Last Will and Testament prior to actually creating and executing the document; however, there is no rule that requires a prior discussion. If you have recently received the news that you were named as the executor of someone’s estate, and you had no prior knowledge that you were being nominated for the position, you may be wondering what to do now.

First and foremost, you need to understand that being nominated as executor does not carry with it any legal obligation that you accept the position. You are free to let the family and loved ones know that you do not feel you have the time or the experience to serve in the position if that is your decision.

If you do accept the position, then you need to take possession of the decedents assets and/or secure the assets to the best of your ability as soon as possible after being notified that you are the executor.

You will also need to petition the appropriate court to probate the decedent’s estate. Along with preparing the documents required to petition for probate, you will need the original Last Will and Testament.

Finally, and most importantly, you may need to retain professional assistance from an estate planning attorney. The larger and more complex the estate assets are, the more important this is. In most cases, reasonable attorney fees can be paid out of the estate assets if the executor requires the assistance of an attorney.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.