Death Probate
The death of a loved one is one of the most difficult events we face during our lives. It requires us to deal with numerous legal, financial, business, and emotional issues. When a loved one passes away, the attorneys at EPS lead families through the complicated Death Probate process, so that the person's final affairs can be properly administered. EPS has a network of other trusted professionals such as clergy, funeral directors, attorneys, financial planners, and accountants who can assist in easing this burden.
Why is Death Probate Necessary?
If a person dies owning individually-held assets (and some joint property), those assets are frozen until they go through Death Probate, whereby a decedent's estate is opened and a Personal Representative (f/k/a an Executor) is appointed by the Probate Court. A duly appointed Personal Representative must properly administer the affairs of the estate for the benefit of creditors or others interested in the estate.
Where an estate is opened without a Will, the estate is said to be "intestate." The statutory rules of intestacy, as applied by the Probate judge, control such estates and determine who will be appointed Personal Representative of the Estate and who will receive the decedent's assets. The rules of intestacy are a default estate plan imposed by the State. The wishes of the deceased are not considered.
Where an estate is opened with a Will, the estate is said to be "testate." A Will allows the decedent to tell the Probate judge who should act as Personal Representative and who should receive the decedent's assets. Therefore, the decedent's wishes are considered. A Will can also be used to nominate a Conservator and Guardian for the dependent children of the deceased.
How can I Avoid Death Probate?
Execute a Durable Financial Power of Attorney
Create a Living Trust
Execute a HIPAA Authorization
These documents must be prepared and executed before a person becomes incapacitated.
What Does Probate Typically Cost?
The Death Probate process can be costly and time consuming. On average, approximately 5 to 10% of the probate estate assets will be consumed by court costs and attorney's fees. If someone passes away with assets in another state, those costs can be higher, because it may be necessary to hire probate attorneys in each state. Some states actually allow a probate attorney to collect a percentage of the probate estate as their fee.
The probate process is also lengthy, averaging approximately twelve months for most estates. The other thing to keep in mind is that probate is a public process, and that all documents filed with the probate court are considered public records which are available for anyone to see.
How Can I Avoid Death Probate?
However, this process and problems associated with it, can be avoided entirely with the use of a Living Trust. Except in unusual circumstances, this document must be prepared and executed before a person becomes incapacitated.
How Is Probate Different From Estate Taxes?
Keep in mind that Death Probate and Estate Taxes are two entirely different concepts. Even if you do not have an estate of sufficient value to trigger Estate Taxes, you still have to be concerned about keeping your assets from going through the probate process.
