WHAT IS PROBATE LAW?
When someone dies, all their possessions including real estate, financial assets and personal effects and even retirement funds may be subject to probate. The assets subject to the probate process includes those assets that are in the name of the person that died only or beneficiary designations to his or her estate in insurance policies, investments, retirement funds. If there are probate assets the transfer of these assets will be controlled by a will
, or if no will the provisions in the state code will control to whom these assets will be transferred.
With a will the person determines to whom these assets will go. They may include immediate family members, close friends, charities, or other heirs. This process is called "probate". Probate is perceived by many persons as costly and too time consuming. Often this is true. At Hintermeister & Kundel we urge our clients to consider using a Revocable Living Trust
as the centerpiece of their estate planning
. If properly prepared and funded this will often avoid the probate process and has many other favorable features as well.
WHAT HAPPENS IN PROBATE?
The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested. The basic process of probating an estate includes:
- Collecting all probate property of the decedent;
- Paying all debts, claims and taxes owed by the estate;
- Collecting all rights to income, dividends, etc.;
- Settling any disputes; and
- Distributing or transferring the remaining property to the heirs.
Usually, the decedent names a person (executor) to take over the management of his or her affairs upon death. If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate. The administrator will fulfill many of the same duties listed above.
Typically, people may leave property to any person they wish, and may make such designations in their will. However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent’s wishes may have to be overridden by the court. For example, in most states, a spouse is entitled to a certain amount of property. Furthermore, creditors may have a claim on the property of the estate. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate. The more complex and sizable the estate, the longer and more time-consuming this process can be.
The probate process itself also carries with it a number of costs that are usually paid out of estate assets. These costs include:
- Fees of the personal representative;
- Attorneys’ fees; and
- Court costs.
CONTACT A LAW OFFICE YOU CAN TRUST
Probate is yet another complex area of law in which you will need a Muscatine Probate Lawyer to help navigate. The entire process can be time consuming and especially stressful on family members who have just lost a loved one. If you are wondering about a few basics of probate law, and how a Muscatine Probate Lawyer can help you, read on.
Q: What is probate?
A: This is the process in which a deceased individuals assets are used to pay off any existing debts and then distributed among family, usually next of kin, once all debts have been paid off with the estate.
Q: Will I need a Muscatine Probate Lawyer to maneuver the probate process?
A: Yes. Probate law is complex and time consuming. It is not advisable to try and take on the probate process alone.
CONTACT A LAW OFFICE YOU CAN TRUST
Please, call us at 563.272.0003 to schedule your free consultation and discuss your situation with our experienced probate lawyers.