Tag Archives: estate planning information

Probate Without a Will

WHAT TYPE OF PROBATE PROCEDURE IS REQUIRED IF SOMEONE DIES WITHOUT A WILL?

There are two types of probate estates:  (1) intestate; and (2) testate.

The probate procedure followed if the decedent  did not leave a valid Will is referred to as an intestate estate..

A probate procedure followed if the decedent did leave a valid Will is referred to as a testate estate.

Q. What is the difference between a testate estate and an intestate estate?

A. For a testate estate, the Will controls who receives the decedent’s assets and the Will nominates an executor who manages the probate process.

In an intestate estate, state intestate succession laws dictates who is entitled to the estate.  State laws also determine who the court appoints as the personal representative to manage the probate process.

One other difference between a testate estate and an intestate estate is the rules regarding surety bonds.  The person who prepares a Last Will and Testament can include instructions waving  the executor’s requirement to purchase a surety bond.  This requirement of the personal representative to purchase a surety bond cannot be waived in some state when there is no valid Last Will and Testament, making the probate process most costly for intestate estates.

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Q. Are the duties of the personal representative any different than those of the executor?

A. The personal representative appointed by the court has the same responsibilities as an executor named in a will.

The personal representative  must inventory the decedent’s estate and determine if the estate has probate assets.   If the estate has probate assets, the personal representative must determine whether to follow the state rules for small estate or a court supervised formal probate procedure.

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Authentic document

An authentic document is one that you state considers to be a legal representation of your wishes.

A Last Will and Testament

  • If you have a will, most states require your estate representative to file the original copy with the probate court.
  • If the original copy cannot be found, some states will consider you to have died intestate.

A Living Trust

  • If you have a living trust, copies of your living trust are considered authentic, binding documents.

Special needs children

If you have a special needs child, it’s important for you to understand the difference in outcome between leaving them assets in a will or a trust.

A Last Will and Testament

  • If you give assets to a special needs child via a will, the assets are now considered property owned by the child.
  • The value of the assets may eliminate the opportunity for a child with special needs to obtain assistance from available local, state or federal assistance programs.

A Living Trust or a Testamentary Trust

  • If your trust has instructions to manage assets on behalf of a special needs child, these assets are not considered to be owned by the special needs child.
  • The value of these assets is not considered when applying for local, state or federal assistance

Minor children: Property management

It’s important to understand what happens to money you leave to your minor children and how to avoid potential pitfalls.

A Last Will and Testament

  • If you leave money to your minor children via your will, a guardian will need to be appointed by the probate court to manage the funds.
  • Depending upon the size of the inheritance, the courts may govern how the money ought to be invested.
  • When the child becomes an adult, at age 18 or 21 depending upon state rules, the child becomes the owner of all the assets.

A Living Trust or A Testamentary Trust

  • If you leave money to your minor children via your trust, your trustee will manage the trust assets for the benefit of your minor children according to the instructions you include in the trust.
  • These instructions can include the age at which you want your children to have access and control of the funds.  For instance, you can give a child access to 1/3 of their inheritance at age 25, 1/3 at age 30 and 1/3 at age 35.