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Probate is the process that legally determines who gets what, resolves the claims of heirs and pays the creditors of the deceased. Probates are usually handled by a family attorney or estate attorney.
To settle an estate, first the dead person’s assets must be inventoried, then the debts must be settled, a tax return must be filed and what's left must be distributed. If the decedent was well-organized, this can be relatively easy; if not, it can be a nightmare. An estate lawyer can help expedite the process.
Probate costs vary from state to state, but can amount to as much as 5% of the total estate value. The probate process takes anywhere from several months to over a year to settle. Once probate is entered into the court record, it becomes a public document that anyone can view. If you need to set up probate, talk to an estate attorney.
Although most states now allow a certain amount of property (such as $100,000) to pass either free of probate or through an expedited probate procedure, an accurate accounting of the estate must still be made. An probate attorney will prove beneficial in understanding the probate process.
Unless there is a living trust, a representative for the decedent is needed to do this. If the decedent does not have a will or name an executor, the probate court will appoint someone.
The probate executor or administrator is obligated to perform all the duties of his/ her position, such as placing all the money into an interest bearing account and treating each beneficiary in a fair and equal way. If the executor does not adequately perform his fiduciary duty, he may be removed or held legally liable for damage to the estate.
Where the probate process runs into problems is when there is no will, or the terms of the will are unclear, or there are probate disputes among the family or heirs, or there is a lawsuit against the estate. Also, the do-it-yourself will ,which saves money at the time ,may end up costing substantially more after the person dies if it was not filled out correctly or does not comply with state law.
Drawbacks to probate:
- Probate can tie up the distribution of property for months, sometimes even a year or more.
- Probate is costly; attorney and court fees can cost up to 5% of the total value of the estate.
There are several ways in which probate can be avoided entirely. The most obvious is through a surviving spouse. In the U.S., a married person’s estate is viewed as community property and the surviving spouse automatically inherits it.
Another way to avoid probate is by setting up a Revocable Living Trust
. By placing all your assets in a Trust, the Trust then controls them and distributes them following your death, according to the instructions you have left behind. In doing so, probate is bypassed.
Drawbacks to a living trust:
- The Trust must be funded. This includes getting new deeds for any real estate you own and setting up joint tenancies, P.O.D. (payable upon death) or T.O.D.(transfer on death) for all your banking and other financial accounts. (Life insurance policies 401Ks and IRAs are automatically set up to pass the assets on following your death.)
- A will is still needed. Any personal assets that aren't part of the Trust will need to be distributed through a will, with gets what should be clearly spelled out.
- Living Trusts won't reduce estate taxes. There are other means of reducing estate taxes such as an AB or credit shelter trusts, or giving away everything prior to death, or leaving it to charity.
- High-pressured salesmen sometimes even con artists often sell Living Trusts. Even worse, some of the advertised Living Trust Seminars are ruses to collect personal information which is then passed on to annuity brokers and insurance agents.
If you want to set up a Living Trust, experts advise that you are best served by contacting a licensed attorney, not someone who aggressively advertises trusts and may charge hidden fees or (worse) lose your money through faulty investing.
Who Can Sue
Any invested party may challenge a trust or probate by petitioning the executor or the court. In the event your claim is rejected and you still wish to pursue your case, you will need to file a lawsuit with a probate attorney.
In probate or trust disputes, you will need to present evidence which supports your claim and proves that you have been unfairly omitted from the will.
Before engaging in any probate challenge, it is recommended that you have the necessary documentation and legal representation that are necessary to successfully establish your claim.
You must also have a copy of the will. If the executor will not voluntarily provide you with a copy, your estate attorney can initiate legal action in order to help you obtain it.
Mere disappointment is not proper grounds to challenge a will or probate, but there are several valid grounds. The two most common are: the testator (person making the will) was not mentally capable at the time of execution or, the testator was unduly influenced. If either is suspected, you will need to initiate legal action in order to protect your interest in the estate.
In cases where the decedent was suffering from dementia or memory loss at the time the will was made, you will need to show expert medical evidence or witness statements to prove this.
You may also be required to show evidence that the decedent was being unduly influenced. Undue influence can take many forms, such as threats, fraud or constant pressure. An example of an undue influence case involves a vulnerable elderly person, who changed their will shortly before they died to favor a non-family member, such as a home health aid or a neighbor.
If you believe you have been excluded from inheriting by mistake, the Inheritance Act 1975 has a provision which allows family members or dependent persons living with the deceased for a minimum of two years to bring a claim against the estate. In such cases, it is generally necessary to show evidence of how the deceased provided critical financial support to you before his or her death.
When a probate dispute arises, the court may refer it to mediation. Some wills even have a mediation clause. The mediator is a neutral party designed to help solve conflicts like this. If you are involved in a mediation proceeding, you should always consult with an estate attorney or probate lawyer who can inform you of your rights as well offer legal remedies that will help you with your case.
- In April, 2006, The Supreme Court gave their thumbs up to late Playmate Anna Nicole Smith in moving her legal battle from probate to federal court. Smith was attempting to prove that her deceased husband, J. Howard Marshall III (63 years her senior) had intended to leave his billion-dollar estate to her. Under an earlier Texas Probate Court ruling, Marshall’s son, E. Pierce Marshall, had been victorious in proving that his father intended to leave Smith nothing except the gifts he gave her before his death in 1995.
- Following the publication of Elvis Presley’s will, it was revealed that the rock legend left most of his estate to his daughter, Lisa Marie Presley, his grandmother, Minnie Mae Presley, his father, Vernon E. Presley, and “such other relatives of mine living at the time of my death…” But upon the death of his father, Elvis also had left written instructions for the trustee “to make no further distributions to the fourth category of beneficiaries and such beneficiaries shall cease to have any interest whatsoever in this trust.”
- In his will, Grateful Dead guitarist, Jerry Garcia, left “all my guitars made by Douglas Erwin, to Douglas Erwin, or to his estate if he predeceases me.”
$250,000,000 in claims by a charitable trust against family members due to inherit was settled after the charity withdrew its accusation that the trustee mismanaged the trust by favoring the family beneficiaries over the charity. All legal fees were paid from trust.
The $5-million claim against an executor was dropped after the beneficiaries suing him for mismanagement were counter-sued by the executor for misappropriating funds. The settlement agreement released all claims against the executor, with the beneficiaries contributing to the trust.
A $14,000 settlement was agreed to by a woman who married the decedent two days before his death. The second spouse initially claimed a $2-million share of estate through marital right but caved in after the validity of her marriage was challenged.
An $11-million challenge to a deathbed will which favored the decedent’s private charitable foundation over his estranged spouse and son was dismissed after a motion showed it to be faulty. The disinherited family settled for around $275,000, or 2.5% of their original claim.