The Guglielmi Law Firm, LLC

The Guglielmi Law Firm, LLCThe Guglielmi Law Firm, LLCThe Guglielmi Law Firm, LLC

The Guglielmi Law Firm, LLC

The Guglielmi Law Firm, LLCThe Guglielmi Law Firm, LLCThe Guglielmi Law Firm, LLC
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    • Wills and Estates
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    • Home
    • About Us
    • Practice Areas
      • Personal Injury
      • Real Estate
      • Criminal Defense
      • Wills and Estates
      • Civil Litigation
      • Business Law
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Wills and Estates

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 While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones.  Proper estate planning not only puts you in charge of your finances, it can also spare your loved ones of the expense, delay and frustration associated with managing your affairs when you pass away or become disabled.
 

Providing for Incapacity
If you become incapacitated, you won’t be able to manage your own financial affairs.  Many are under the mistaken impression that their spouse or adult children can automatically take over for them in case they become incapacitated.  The truth is that in order for others to be able to manage your finances, they must petition a court to declare you legally incompetent.  This process can be lengthy, costly and stressful.  Even if the court appoints the person you would have chosen, they may have to come back to the court every year and show how they are spending and investing each and every penny.  If you want your family to be able to immediately take over for you, you must designate a person or persons that you trust in proper legal documents so that they will have the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home.  A will does not take effect until you die and a power of attorney may be insufficient.
 

In addition to planning for the financial aspect of your affairs during incapacity, you should establish a plan for your medical care.  The law allows you to appoint someone you trust - for example, a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself.  You can do this by using a durable power of attorney for health care where you designate the person to make such decisions.  In addition to a power of attorney for heath care, you should also have a living will which informs others of your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.
 

  Probate Process


When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. 

Every probate estate is unique, but most involve the following steps:

  • Filing      of a petition with the proper probate court.
  • Notice      to heirs under the Will or to statutory heirs (if no Will exists).
  • Petition      to appoint Executor (in the case of a Will) or Administrator for the      estate.
  • Inventory      and appraisal of estate assets by Executor/Administrator.
  • Payment      of estate debt to rightful creditors.
  • Sale      of estate assets. 
  • Payment      of estate taxes, if applicable.
  • Final      distribution of assets to heirs.

FREQUENTLY ASKED QUESTIONS

What happens if someone objects to the Will?

An objection to a Will, also known as a “Will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.

In order to contest a Will, one has to have legal “standing” to raise objections.  This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.  In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. 

Certain types of assets are what is called “non-probate assets” do not go through probate.  These include:

  • Property      in which you own title as “joint tenants with right of      survivorship”.  Such property passes to the co-owners by operation of      law and do not go through probate.
  • Retirement      accounts such as IRA and 401(k) accounts where there are designated      beneficiaries.
  • Life      insurance policies.
  • Bank      accounts with “pay on death” (POD) designations or “in trust for”      designations.
  • Property      owned by a living trust.  Legal title to such property passes to      successor trustees without having to go through probate.
     

This website is for informational purposes only. Using this site or communicating with The Guglielmi Law Firm, LLC through this site does not form an attorney/client relationship.  This site is legal advertising.


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