Probate law

WHEN IS THE PROBATE COURT INVOLVED IN OUR AFFAIRS?

The probate court has a responsibility to manage our affairs when we can’t.

This can happen in three different situations:

1. You die and own assets titled in your own name, or the estate is the beneficiary.  Since you can no longer manages these assets, someone must be given the legal authority to manage these assets on your behalf.  The probate court has the responsibility to appoint an estate representative and monitor the activities of the estate representative.
2. You become incapacitated.  The law will consider you unable to manage your financial affairs or make your own health care choices.   Someone must be given the legal authority to make choices for you.  The probate court is obligated to appoint a conservator to manage your affairs, and then supervises the activities of the conservator.
3. A minor child is named as a beneficiary.   Since minor children cannot legally “own” property, a guardian must be appointed to manage their affairs until the minor child is considered an adult.  The probate court has the responsibility to appoint a guardian and to monitor the actions taken by the guardian.

"Working through a probate court without a plan was a nightmare."

When the probate court is involved, several things happen:

All of the information regarding you and your financial or health affairs are public records.   In many courts, these records can be accessed online by anyone.

The cost of probate comes from your net worth.   These costs can include court filing costs, legal fees, surety bond, and reporting fees.

The person appointed to be in charge of making choices for you or your minor children must follow choices set by state statutes, which may not be your choices.

The courts will appoint someone to act on your behalf, or on behalf of your minor children.   This person may not be someone you would want making choices for you and your minor children.

You can find out more about the probate process and avoiding probate on these pages:

• Probate assets
• Minor children
• Durable Power of Attorney For Finances
• Living Trust
• Conservatorship

Tagged as: Probate, probate a will, Probate assets, probate court, probate estate, Probate forms, Probate law, probate laws, probate records, probate will

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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.

Tagged as: estate planning information, Living Trust, living trusts, Probate, Probate law, revocable living trusts, will

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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

Tagged as: Children With Special Needs, estate planning information, living trusts, Probate, Probate law

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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.

Tagged as: custodian, custodian laws, estate planning information, guardianship, Probate law

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