•List who gets what. The most common purpose for a will is to name which individual, or group of individuals, will receive particular property belonging to a person when he or she passes away.
•Name guardians for children. Typically, a will is the document that states who should raise a person’s children if something happens to the parent. The will also usually contains at least one alternate in the event the first choice cannot serve.
•Establish trusts. In many cases, a person may not want a child or loved one to receive all of the property that they are inheriting at once. Or a person may want the beneficiary to be able to use the property for a while, and then for it to pass on to someone else. In that situation, an individual may choose to use a trust. A trust holds property on someone else’s behalf. In wills, trusts are commonly established for minor children, so that someone else can manage the children’s money until they reach a certain age when their parents believe they will be able to manage it. Trusts are also commonly used in second marriage situations – a person may want to allow a spouse to have access to certain property while the spouse is living, but for that property to ultimately pass to the decedent’s children. Trusts can help accomplish that goal.
•List funeral wishes. Although this is also done in other documents too, a will commonly states whether an individual wants to be buried or cremated, and where the body should be buried or the ashes should be spread. Sometimes, wills contain other information about funeral wishes too like where it should take place and even what readings might be recited.
•Tax planning. Wills can be great tools for tax planning in order to avoid federal or state estate or inheritance taxes. This can sometimes be accomplished by setting up various trusts.
•Naming executors and trustees. A will usually states who will be the executor of an estate, which is the person who will carry out a deceased individual’s wishes listed in the will. Wills can also name the trustee of any trusts established in a will, which is the person who will be in charge of carrying out the instructions of the trusts. •List who gets what. The most common purpose for a will is to name which individual, or group of individuals, will receive particular property belonging to a person when he or she passes away.
WILLS & PROBATE
Deciding what will happen to your home, your financial assets, and your personal possessions after your passing can be a difficult process. However, if you don’t take the time to make these decisions now, a court may end up dividing your property for you.
Instead of leaving such important decisions to the courts, get the assistance you need to make wise decisions concerning your estate by speaking with John F. Hitchcock, Attorney & Counselor at Law, who is dedicated to helping you through every step of your estate planning, and is prepared to assist you with your legal needs.
The decisions you make regarding your estate determine how your property will be divided and what estate taxes will need to be paid after your passing. Be sure that your wishes are carried out by consulting with John F. Hitchcock, Attorney & Counselor at Law today.
Wills can be used for a lot more than simply dictating who gets a person’s antique lamp collection. Here’s a list of some of the very valuable things a will can do:
Probate / Estate Administration
When a loved one passes away, his or her estate often goes through a court-managed process called Probate or Estate Administration where the assets of the deceased are managed and distributed. If the assets of the deceased were owned through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the Probate Court.
The probate process for each estate is unique, but usually involves the following steps:
•Filing of a petition with the proper Probate Court.
•Notice to heirs under the will or to statutory heirs (if no will exists).
•Petition to appoint Executor (in the case of a will) or Administrator for the estate.
•Inventory and appraisal of estate assets by Executor/Administrator.
•Payment of estate debt to rightful creditors.
•Sale of estate assets.
•Payment of estate taxes, if applicable.
•Final distribution of assets to heirs.
What happens if someone objects to the will?
An objection to a will, also known as a “will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.
In order to contest a will, one has to have legal “standing” to raise objections. This usually occurs when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Executor.
Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are “non-probate assets” and do not go through probate. These include:
•Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
•Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
•Life insurance policies.
•Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
•Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.
Do I get paid for serving as an Executor?
Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.
How much does probate cost? How long does it take?
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include Executors’ fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 6 to 18 months, assuming there is no litigation involved.