Maxine Aaronson, Attorney at Law
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Estate Planning Newsletter

  • Guardianships
    In certain cases, a minor may need to be assigned a legal guardian either because a parent is not able to care for the minor, or because the existing guardian is not competent. When a guardian is appointed, he/she will have the same... Read more.
  • Administering the Estate of a Missing Person
    When an individual dies, their estate must be administered and distributed according to their previously established estate plan (if the decedent executed an estate plan prior to their death) or state intestate succession laws (if the... Read more.
  • Legislation Impacting Organ & Tissue Donation
    Statistics from the U.S. Department of Health and Human Services indicate that while an average of 75 people receive an organ transplant each day, 18 people die each day while awaiting an organ transplant. The Uniform Anatomical Gift... Read more.
  • Filing a Death Claim When an Insured Person Dies
    The beneficiary of a life insurance policy is the person entitled to receive the death benefit of the policy when the insured person dies. In order to collect on a death benefit claim, the beneficiary must usually comply with specific... Read more.
Estate Planning News Links

Probate

Probate, a Latin term meaning “to prove the will,” is a court-supervised process that settles a person’s affairs after death.

To ensure that the decedent’s final matters and wishes are handled correctly and without bias, most states have probate courts (or special departments of the court) to oversee the settling of estates. Probate may occur even if there is no will.

Court Appointees

Usually the court will appoint one of 2 types of persons to oversee the decedent’s final affairs:

  • Executor – Typically the person, bank or trust company named in a will to administer the estate
  • Administrator – Typically appointed if the decedent died without a will (intestate)

On behalf of the decedent, the probate court makes certain that:

  • Any final bills and expenses are paid, including any taxes owed
  • Any assets remaining are distributed to the beneficiaries named in a will
  • If there was no will, any assets remaining are distributed to the correct heirs under the laws of intestate succession

What Qualifies for Probate?

The deceased person’s estate must have assets (such as real estate, bank accounts, securities) before probate occurs. Each state sets its own requirements on when probate is necessary, usually according to the value of an estate’s assets.

In some states, the assets must be at least $10,000 to go through probate, or modified probate. However, other states allow assets of up to $100,000 before probate occurs.

These assets would not include any real or personal property of the decedent’s that others receive directly through joint tenancy, trusts, life insurance benefits, right of survivorship or other means.

Reasons to Avoid Probate

The primary disadvantages of probate are:

  • The time it takes for an estate to be administered through the probate process
    (which can span anywhere from several months to several years)
  • The cost involved in the probate process (which can include fees for the court, estate administrator, attorney and taxes)