Estate planning is the process of anticipating the impact of events on a person’s assets to insure that during their life and upon death, the value of the assets are maximized and distributed in accordance with our Client’s goals.
This includes the drafting of a will, and going thorough probate.
TOP 5 REASONS TO HAVE A WILL
Drafting a will helps protect your family and minimizes the trauma they have to face upon your death. It also allows you to pass on your legacy as you wish, reflecting your personal values and interests. Although each person’s situation is different, here are the top 5 reasons why you should draft a will:
1) YOU DECIDE WHO WILL TAKE CARE OF YOUR MINOR CHILDREN. If you do not draft a will, the court will decide among family members or a state-appointed guardian. No stranger should make that decision for your children. Choosing a guardian is a very difficult decision for most people, but put in the time and make the best decision that you can.
2) YOU MINIMIZE FIGHTING AMONG YOUR FAMILY MEMBERS. Fighting among family members is much more common in situations where the decedent has not left a will. When a loved one dies, emotions run high and it is very easy for family members to fight amongst themselves, not just for monetary gain, but because they are hurt and in pain, and want to feel acknowledged and loved by the legacy. In a worst case scenario, family members may even fight about raising your children, which would be terrible for the kids.
3) YOU AVOID A LENGTHY PROBATE PROCESS. Having a will speeds up the probate process and informs the court how you’d like your estate divided. Think of this both as saving your family members massive headaches as they have to deal with the complex probate process for an intestate estate, as well as getting them the assets they need more quickly.
4) SAVE YOUR BUSINESS. Making a will is incredibly important in passing your company to your heirs or the co-owners of your business. 70% of family owned businesses do not last past the first generation, and this is often due to a lack of estate planning.
5) MAKE GIFTS AND DONATIONS. The ability to make gifts allows your legacy to live on and allows you to make an impact that reflects your values, ideas and passions. In addition, gifts up to a certain amount are excluded from an estate tax, so you can increase the value of your estate for your heirs and beneficiaries to enjoy.
WHAT DOES IT MEAN TO PROBATE A WILL?
People think that probating a Will is a massive, expensive and unnecessary undertaking that simply adds stress in a time of grief and anxiety. However, in most cases, the probate process is neither terribly complicated nor terribly expensive, and an experienced estate planning attorney can help you through every step.
Essentially, the probate process is legally proving the validity of the Will and officially appointing the executor named in the Will. And, going through the process streamlines and simplifies the task of acting on the deceased’s wishes for their estate.
Here are some things to keep in mind. First, not every Will needs to be probated. Probate is only necessary if the decedent owned assets in his name alone or in joint names with another person other then a spouse. Often, for example, when the first spouse dies, there is no need to probate a Will because all assets were held jointly.
If probate is necessary, the process begins by presenting the original Will, a certified copy of the death certificate, and a list of names and addresses of the closest next of kin to the County Surrogate where the decedent lived at the time of death.
The Surrogate then reviews the Will and determines whether all legal requirements are satisfied. If the Will is self-proving, as most are, the Will can be admitted without any additional proofs being required. Assuming that the Will is sufficient and no issue is raised, certificates are prepared by the court and signed by the executor. These certificates allow the executor to take all action that the deceased could have taken, such as change or close bank accounts, transfer assets, etc.
The next step is for the executor is to take an inventory of the estate. In the case of smaller estates, this can be a fairly informal process. Depending on the situation, particularly if there are multiple beneficiaries, this may require appraisals to be done of larger items, such as real estate.
Once the executor has the certificates, he or she generally has the following responsibilities: 1) to collect the estate’s assets and information; 2) to determine any claims against the estate; 3) to manage the estate; and 4) to pay the estate’s taxes.
One important note: while the executor is responsible for paying claims of the estate, it is very important to remember that the executor also has the right to dispute any claims. I highly recommend that efforts be made to negotiate bills that come in.
An experienced estate planning attorney can help with all of the above. Although the process explained above is not incredibly complicated, many people find it helpful to have an expert to turn to who can help explain the process and take on all tasks which may otherwise seem overwhelming. If you have any questions or would like to discuss this process, please feel free to call me at (201) 664-8855.