Wills, Trusts & Probate
What is a will?
A last will and testament, is more commonly known as a will. A will is used in most estate plans. A Will is the voice of a deceased individual. It tells his or her family and heirs how his or her estate should be distributed. A will describes how the deceased’s assets will be divided, the decease’s preferences for the care or guardianship of minor children and his or her funeral or burial preferences. A Will may also create a trust.
A Will may name a personal representative of the decedent’s estate. The personal representative acts on behalf of the deceased person to manage the probate case and to manage and/or distribute estate assets during the probate process and to administer this person’s estate according to his or her wishes. It’s important that the personal representative work closely with a qualified attorney during this time.
How are wills used?
A will can be used as the only document in an estate plan. It then serves as the sole instruction as to how the estate is handled. Or, it can be use with a Trust agreement. When a Trust is used, the trust is usually set up before death, but may be set up after a person’s death. A Trust must be funded, that is, assets must be transferred into the Trust’s name and then managed by a trustee. When a person passes away, all assets transferred to the trust are managed and disposed of by the Trustee. Trust assets may be distributed immediately without the guidance of the probate court or they may be held for a period and distributed according to quite specific instructions.
What is probate?
Probate is a legal process that takes place in court, and monitored by a probate court judge. This process is used to validated a will. The Probate Court must approve a will before any action can be taken. The Court ensures that the decedent’s wishes are being fulfilled according to state law. Probate Court proceedings in small estates may seek a streamlined process with minimal supervision. You attorney can advise how best to present your probate matter.
Wills are widely available on the internet, at office supply stores, and elsewhere. But we caution our clients to avoid using a do-it-yourself approach. Setting up a will or a complete estate plan requires special skill and knowledge. A do-it-yourself approach can be a costly mistake. Only a qualified estate planning attorney can evaluate your situation, inform you of your options, draft a comprehensive document and execute it according to state law and your intentions. Contact us today to begin your estate plan.