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The Probate Court is where decedent’s estate, guardianship, and conservatorship matters are administered. The process for handling and completing these types of matters can be daunting, overwhelming and complex. Let Rodger I. Sweeting, PLC guide and protect you through the process to ensure that your matter is handled thoroughly, speedily and effectively.
Estate Administration (decedent’s estate)
When an individual passes away, their assets (everything they owned) at their time of death are divided into two categories: probate assets and non-probate assets. Probate assets must go through the Probate Process in order for the assets to be transferred from the deceased individual to their heirs (blood relatives) and/or devisees (people named in the deceased’s Will). Non-probate assets are those assets that automatically pass to named individuals upon death and therefore do not have to be probated.
The Probate Administration Process
If the deceased has probate assets at the time of their death, a probate estate must be opened in the Probate Court in the county where the deceased resided. If the probate process is necessary, a Personal Representative will be appointed to administer the estate, notice will be given to creditors of the deceased, an inventory of the deceased’s probate assets will be filed, all appropriate costs, expenses, allowances, exemptions, debts, claims and taxes will be paid, an accounting will be filed, the remaining assets will be distributed to the heirs and/or devisees per the deceased’s Will or the intestacy statute if there was no Will and lastly the Court will be petitioned to close the probate estate.
Can Probate Administration be avoided?
Yes. Certain steps can be taken to avoid probate. Examples of assets that are non-probate assets and therefor avoid the probate process include:
· Property owned by the decedent and another person “with rights of survivorship”;
· Property held jointly (such as joint bank accounts, safety deposit boxes);
· Property with a payable on death (POD) or transfer on death (TOD) designations;
· Property with a named beneficiary, such as life insurance, annuities, or IRAs; and
· Assets held by a Non-Testamentary Trust.
There are advantages and disadvantages in using any of these options as part of your Estate Plan. They should only be used as part of your estate plan after consulting with an Estate Planning professional.
What are Guardianships and Conservatorships?
When an individual is no longer able to handle their affairs due to a physical or mental impairment of disability, an interested person may petition the Probate Court to have a Guardian and/or Conservator appointed to handle the affairs of the incapacitated individual. A Guardian is an individual appointed by the Court to handle the legal or day to day decisions of the incapacitated person. A Conservator is the person who manages the individual’s assets or money. Upon receiving a Petition for Guardianship or Conservatorship, the Judge will review all of the evidence, request testimony and medical examinations if necessary, and then appointed a Guardian and/or Conservator for the individual if they find that the individual is legally incapacitated and that the Guardianship or Conservatorship is necessary. A Guardian or Conservator is not necessary if the individual has executed a valid financial and medical Power of Attorney (if you do not have a medical and financial power of attorney feel free to discuss why it is important to have one with Rodger I. Sweeting). If a Guardianship and/or Conservatorship is established by the Court, the Guardian and/or Conservator is required to make yearly report to the Court regarding the decisions/actions they have taken in their role as Guardian or Conservator.
A Guardianship or Conservatorship may be appointed by the Probate Court for a minor child in certain instances. A Guardianship may be necessary when a minor’s parents are either deceased or unable or unwilling to take care of the child. In either of these instances an interested person may petition the Court to be appointed to serve as the minor child’s guardian.
A minor would be in need of a Conservator if they were to receive or inherit a large sum of money. The purpose of the Conservatorship is that since a minor child is generally not able to enter into contracts and make other legally binding decisions on their own, the Court will appoint someone to handle their finances for them until they reach the age of 18.
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