Probate: Estates & Wills

What is Probate?

When a person dies having previously executed a  Last will and Testament they have died “testate” or if they do not have a will it is called dying “intestate”.

Probate is the process used to pay the decedent’s  bills, and then divide and distribute assets from a decedent’s estate according to the decedent’s wishes as expressed in their Will or if they died intestate, according to the distribution statute.  Only those assets which are not in survivorship must go through probate.  Examples of survivorship assets are life insurance with named beneficiaries, bank accounts in more than one person’s name, payable on death accounts, real estate with specific survivorship wording, or a transfer on death affidavit is recorded.    Since survivorship assets do not go through probate, they can easily be transferred without court involvement.

The Probate process has several steps which ensure that the assets are distributed to the proper beneficiaries.  

Does everyone need a will?

A Will  or Last Will and Testament is the document that states to whom the estate assets are to be distributed and names an executor to handle the estate process.  Having a Will allows a person to control who receives their assets after they die and who will be in charge of the probate process as the executor.  It also allows the estate to dispense with the requirement of a bond for the executor.  This saves the estate time and money.  It is very important to consult with an expert about the preparation of a will and to totally understand what assets are controlled by a will.  Not all asset are controlled by a will, but everyone should have a will.

What is Power of Attorney?

A Power of Attorney (POA) is a very important document in which an individual gives someone else the authority to handle their financial assets. It allows the person to do common everyday banking as well as handle specific financial events such as buying or selling real estate.   A POA  can be drafted to be limited to certain assets, duration, or situations, or it can be drafted to be complete control over all assets and last indefinitely.   Great care and consideration should be given before a person decides who should take care of their financial affairs.   The person should be someone you trust implicitly. The Power of Attorney ceases to be valid once the person who signed it dies. If you do not have a valid POA and you become incompetent or incapacitated, then the court may need to name a Guardian to maintain your assets and pay your bills. A Guardianship is very expensive and cumbersome, so having a POA can be very beneficial.

When is a Guardianship necessary?

Guardianships can control a person or  their assets or both.   Guardianships are used for minors and persons who do not have the legal capacity to handle their financial or personal living situations.  A Guardianship over the assets is called a Guardianship of the Estate and a guardianship over the person for their personal living situation is called a Guardianship of the Person.  The guardian must account to the court for all expenditures in the guardianship and the court must approve all expenditures.

Do I need a Living Will?

If you do not want to be put on life support with feeding tubes when you have no brain function, then you should sign a Living Will.  Living Wills indicate that you do not want to be put on life support if you are terminally ill or permanently brain dead.  Your attending physician plus one other doctor must agree that you are in that condition before life support will be withdrawn.

What is Durable Power of Attorney for Health Care?

 A Durable Power of Attorney for Health Care names a person to make health care decisions for you when you are unable to make them for yourself.

When do  I need a HIPAA Release?

HIPAA Release names who you want to be able to communicate with doctors and  health insurance companies regarding your medical status or needs.

What is a Designation of Remains?

Designation of Remains indicates who you want to control your body or remains after your death.  This can be especially important if you have conflict within your family, a blended family, or have strong wishes about the place or process you wish for your remains.


Real Estate

What is are Quit Claim and Survivorship Deeds and Transfer on Death Affidavits?

A Quit claim deed is a type of deed that transfers whatever interest in the real estate the transferor owns without any warranties.  Typically, a quit claim deed is used to transfer the real estate during a divorce or dissolution.

Survivorship deeds provide co-ownership and allows real estate to avoid the probate process when one of the owners dies.

Transfer on death affidavits allows the owner of the real estate to designate who should get the real estate upon their death without it going through probate.  The transfer on death beneficiary does not own any interest in the real estate during the owner’s life and the beneficiaries’ signature is not necessary for a sale of the real estate.