Probates and Wills
My Patient Guide
Guiding you every step of the way.
Elder Law
101
Taken with permission from www.rothkofflaw.com
The Law Offices of Jerold E. Rothkoff is committed to helping seniors and their families navigate through the difficult legal issues involving the aging process.
Phone: 1-877-475-1101
What is probate?
Probate is the process of actually carrying out the directives of a will or trusts following the death or incapacity of the property owner. The process is carried out according to the laws of the state where the individual resided in specific ways that vary in detail from state to state.
What is living probate?
This is the term used for probate while the property owner is living, in a situation of mental or physical disablement. Guardianship is a probate procedure in which someone designated as a “guardian” is selected to manage all of an individual’s personal affairs. Conservatorship is another form of probate whereby someone is selected by the court to control only one’s assets. In either case the process is very closely supervised by agents of the court who are held to very strict requirements for reporting and accounting to the court periodically. Either process is cumbersome and expensive. Also, in these cases the proceedings are a matter of public record.
What is death probate?
This is when the property owner dies and his or her assets are transferred according to the terms of a will or trust. The steps followed are:
* File with the court and appoint an executor or administrator.
* Notify those owed money by the decedent.
* Itemize and appraise the decedent’s assets.
* Pay taxes, debts, and obligations of the property owner.
* Distribute the remaining assets.
* Close the estate.
What costs are associated with probate?
Probate costs vary depending on the complexity of the estate. Requirements for assessment of businesses or other assets of unclear value can be complex and costly, however, in New Jersey and Pennsylvania, for the average estate, probate should generally be an inexpensive process.
How long does probate take?
Anywhere from four or five months to a year, depending again on the complexity of the estate and the number and form of the assets held.
How can probate records be kept private?
They cannot; probate proceedings are in the public record. Anyone can review a probate file and the details of the person’s estate.
If assets are owned jointly do they have to be included in probate?
Assets owned jointly by a married couple will pass to the surviving spouse when the first spouse dies, but then they will become “sole” assets and they will be subject to probate when the surviving spouse dies.
Is probate required when there is a will?
Yes, probate is the process by which the terms of a will are administered.
What is a will?
A will is a document one creates to specify how his or her property will be distributed upon death. Wills can be changed or revoked anytime one is alive and capable. Major changes in asset ownership, birth or death of family members, changes in marital status and other life events are frequently reasons for changing a will.
What is in a will?
A will typically will contain the following items:
* A formal declaration that this is a will and that previous wills are void
* Naming of an administrator or executor to carry out the will’s provisions upon death
* Specific provisions for distributing named assets and remaining unspecified assets
* Naming a guardian for a minor child
* Naming of a trustee for a trust created by will
* Miscellaneous provisions
What is a living will?
The term “living will” does not refer to distribution of assets. A living will provides precise medical instructions for an agent to act under a medical power of attorney. Basically, a living will states an individual’s wish not to be kept alive by “heroic” or artificial means when recovery from physical or mental disability cannot reasonably be expected.
Elder Law
Elder Law
