What’s Involved in the Probate Process?

SWAAY’s recent article entitled “What is the Probate Process in Florida?” says that while every state has its own laws, the probate process can be fairly similar. Here are the basic steps in the probate process:

The family consults with an experienced probate attorney. Those mentioned in the decedent’s will should meet with a probate lawyer. During the meeting, all relevant documentation like the list of debts, life insurance policies, financial statements, real estate title deeds, and the will should be available.

Filing the petition. The process would be in initiated by the executor or personal representative named in the will. He or she is in charge of distributing the estate’s assets. If there’s no will, you can ask an estate planning attorney to petition a court to appoint an executor. When the court approves the estate representative, the Letters of Administration are issued as evidence of legal authority to act as the executor. The executor will pay state taxes, funeral costs, and creditor claims on behalf of the decedent. He or she will also notice creditors and beneficiaries, coordinate the asset distribution and then close the probate estate.

Noticing beneficiaries and creditors. The executor must notify all beneficiaries of trust estates, the surviving spouse and all parties that have the rights of inheritance. Creditors of the deceased will also want to be paid and will make a claim on the estate.

Obtaining the letters of administration (letters testamentary) obtained from the probate court. After the executor obtains the letter, he or she will open the estate account at a bank. Statements and assets that were in the deceased name will be liquidated and sold, if there’s a need. Proceeds obtained from the sale of property are kept in the estate account and are later distributed.

Settling all expenses, taxes, and estate debts. By law, the decedent’s debts must typically be settled prior to any distributions to the heirs. The executor will also prepare a final income tax return for the estate. Note that life insurance policies and retirement savings are distributed to heirs despite the debts owed, as they transfer by beneficiary designation outside of the will and probate.

Conducting an inventory of the estate. The executor will have conducted a final account of the remaining estate. This accounting will include the fees paid to the executor, probate expenses, cost of assets and the charges incurred when settling debts.

Distributing the assets. After the creditor claims have been settled, the executor will ask the court to transfer all assets to successors in compliance with state law or the provisions of the will. The court will issue an order to move the assets. If there’s no will, the state probate succession laws will decide who is entitled to receive a share of the property.

Finalizing the probate estate. The last step is for the executor to formally close the estate. The includes payment to creditors and distribution of assets, preparing a final distribution document and a closing affidavit that states that the assets were adequately distributed to all heirs.

Reference: SWAAY (Aug. 24, 2020) “What is the Probate Process in Florida?”

How Does Guardianship Work?

How does guardianship work? For the most part, we are free to make our own decisions regarding how we live, where we live, how we spend our money and even with whom we socialize. However, when we are no longer capable of caring for ourselves, most commonly due to advancing age or dementia, or if an accident or illness occurs and we can’t manage our affairs, it may be necessary to seek a guardianship, as explained in the recent article “Legal Corner: A guardian can be a helpful tool in cases of incapacity” from The Westerly Sun. A guardianship is also necessary for the care of a child or adult with special needs.

If no proper estate planning has been done and no one has been given power of attorney or health care power of attorney, a guardianship may be necessary. This is a legal relationship where one person, ideally a responsible, capable and caring person known as a guardian, is given the legal power to manage the needs of a ward, the person who cannot manage their own affairs. This is usually supported through a court process, requires a medical assessment and comes before the probate court for a hearing.

Once the guardian is qualified and appointed by the court, they have the authority to oversee everything about the ward’s life. They have power over the ward’s money and how it is spent, health care decisions, residential issues and even with whom the ward spends time. At its essence, a guardianship is akin to a parent-child relationship.

Guardianships can be tailored by the court to meet the specific needs of the ward in each case, with the guardian’s powers either limited or expanded, as needed and as appropriate.

The guardian must report to the court on a yearly basis about the ward’s health and health care and file an annual accounting of what has been done with the ward’s money and how much money remains. The court supervision is intended to protect the ward from mismanagement of their finances and ensure that the guardianship is still needed and maintained on an annual basis.

The relationship between the ward and the guardian is often a close one and can continue for many years. The guardianship ends upon the death of the ward, the resignation or removal of the guardian, or in cases of temporary illness or incapacity, when the ward recovers and is once again able to handle their own affairs and make health care decisions on their own.

If and when an elderly family member can no longer manage their own lives, guardianship is a way to step in and care for them, if no prior estate planning has been done. It is preferable for an estate plan to be created and for powers of attorney be created, but in its absence, this is an option.

Reference: The Westerly Sun (Sep. 19, 2020) “Legal Corner: A guardian can be a helpful tool in cases of incapacity”

Should I Write My Will During the Pandemic?

Writing a will allows you to instruct your executor how you want your assets to be distributed when you die. If you have minor children, your will ought to include instruction on who will raise them if you die and their other parent is deceased.

The Oakland Press’s article entitled Writing a will today is more important than ever” says that if you pass away before writing a will, the state will make these critical decisions for you. What the state decides may not reflect your wishes. This may create conflict and stress within your family and cause financial troubles for those you leave behind. It may be important to note that, in this scenario, none of your assets will go to your favorite charities.

Writing a will, as with other estate planning documents, is critical because this gives you control over how your affairs are handled when you die. This includes the way in which your assets are distributed and who will take care of your children, if they’re minors.

When you are writing your will, it’s important that it’s legally valid. There’s no guarantee that a will prepared without an estate planning lawyer will meet the criteria. If the probate judge doesn’t accept your will, it’s as if you died without one.

As a result, it’s very important that you work with a qualified estate planning attorney writing a will. If you don’t, it is possible that your will or other estate documents you purchased online might not meet the state requirements.

Therefore, you’ve wasted money, and your instructions may not be followed. This can mean uncertainty in how your estate is eventually administered, and it can make an already stressful situation even worse for your family.

An experienced estate planning attorney can make sure your will meets the state’s requirements, decreases hard feelings within your family and keeps your family from challenging its validity in court.

If you have written a will already, consider updating it, especially if a beneficiary listed on the document has died, if you’ve sold your home and bought another, given away some of your possessions, your financial circumstances or the value of your property has changed, or your charity relationships have changed.

You may want to change your estate plan when your children become adults or if others that were provided for in the estate plan are no longer living.

Writing a will is a delicate process that requires the expertise of a professional estate planning attorney.

Reference: Oakland Press (May 16, 2020) Writing a will today is more important than ever”

Beginning Estate Planning

When beginning estate planning, it is helpful to clarify what the essential elements of a proper estate plan are. AARP’s recent article entitled “Sign These Papers” suggests that the following documents will give you and your family financial protection, as well as peace of mind. Beginning estate planning can be intimidating, but with appropriate guidance, you will reap the benefits for years to come.

Advance Directive. This document gives your family, loved ones and medical professionals your instructions for your health care. A living will, which is a kind of advance directive, details the treatment you’d like to have in the event you’re unable to speak. It covers things like when you would want doctors to stop treatment, pain relief and life support. Providing these instructions helps your family deal with these issues later.

Durable Power of Attorney for Health Care. This document, regularly included in an advance directive, lets you name a trusted person (plus a backup or two) to make medical decisions on your behalf, when you’re unable to do so.

Revocable Living Trust. Drawn up correctly by an experienced estate planning attorney, this makes it easy to keep track of your finances now, allow a trusted person step in, if necessary, and make certain that there are fewer problems for your heirs when you pass away. A revocable living trust is a powerful document that allows you to stay in control of all your finances as long as you want. You can also make changes to your trust as often as you like.

When you pass away, your family will have a much easiest task of distributing the assets in the trust to your beneficiaries. Without this, they’ll have to go through the probate process.  It can be a long and possibly costly process, if you die with only a will or intestate (i.e., without a will).

Will. Drafting a will with the guidance of an experienced estate planning attorney lets you avoid potential family fighting over what you’ve left behind. Your will can describe in succinct language whom you want to inherit items that might not be in your trust — your home or car, or specific keepsakes, such as your baseball card collection and your Hummel Figurines.

Durable Financial Power of Attorney. If you’re alive but incapacitated, the only way a trusted person, acting on your behalf, can access an IRA, pension or other financial account in your name is with a durable financial power of attorney. Many brokerages and other financial institutions have their own power of attorney forms, so make sure you ask about this.

Beginning estate planning is not complete without these five documents (sometimes four, if your advance directive and health care power of attorney are combined). Drafting a proper estate plan will allow you to enjoy a happier, less stressful life.

In drafting these documents, you know that you’ve taken the steps to make navigating the future as smooth as possible. By making your intentions clear and easing the inheritance process as much as you possibly can, you’re taking care of your family. The benefits of beginning estate planning today will be enjoyed for years to come. Your family will be grateful that you did.

Reference: AARP (August/September 2018) “Sign These Papers”

What Can a Strong Estate Planning Attorney Help Me Accomplish?
Consult with our team to find out if the Law Office of Michael T. Huguelet, P.C. is the right fit for you.

What Can a Strong Estate Planning Attorney Help Me Accomplish?

No matter your age, the estate planning attorney you hire should have outstanding credentials and testimonials to their efficiency and personal concern. At the Law Office of Michael T. Huguelet, our promise to service your needs is backed by experience and expertise. Our team is equipped with the tools to make your estate planning goals become a reality.

As you begin settling down, it is sensical to start considering how you’ll provide for and protect those you love. It’s important that these responsibilities rest in good hands. Your estate planning attorney ought to have the knowledge and skill to help you design a workable, legally binding estate plan, one that’ll keep your assets safe as they accumulate, protect your loved ones, and consider the possibility that you may become incapacitated when you least expect it.

It’s only natural that you would be picky in choosing your estate planning attorney. This legal professional must be able to:

  • Listen, understand, and address your individual needs
  • Clarify your options
  • Draft, review, and file all necessary estate planning documents
  • Make certain your estate plan covers all contingencies; and
  • modify your documents as your life circumstances change.

The future is unpredictable. Estate planning can help you make that future as secure as possible.

Estate planning can be as complicated as it is essential. Accordingly, regardless of our age, speak with a highly competent estate planning attorney as soon as possible.

As the COVID-19 pandemic has dramatically shown us, planning for the unexpected can never be addressed too soon.

Reference: Legal Reader (June 23, 2020) “When Should I Start My Estate Planning?”

Why Is a Revocable Trust So Valuable in Estate Planning?

There’s quite a bit that a trust can do to solve big estate planning and tax problems for many families.

As Forbes explains in its recent article, “Revocable Trusts: The Swiss Army Knife Of Financial Planning,” trusts are a critical component of a proper estate plan. There are three parties to a trust: the owner of some property (settler or grantor) turns it over to a trusted person or organization (trustee) under a trust arrangement to hold and manage for the benefit of someone (the beneficiary). A written trust document will spell out the terms of the arrangement.

One of the most useful trusts is a revocable trust (inter vivos) where the grantor creates a trust, funds it, manages it, and has unrestricted rights to the trust assets (corpus). The grantor has the right at any point to revoke the trust, by simply tearing up the document and reclaiming the assets, or perhaps modifying the trust to accomplish other estate planning goals.

After discussing trusts with your attorney, he or she will draft the trust document and re-title property to the trust. The assets transferred to a revocable trust can be reclaimed at any time. The grantor has unrestricted rights to the property. During the life of the grantor, the trust provides protection and management, if and when it’s needed.

Let’s examine the potential lifetime and estate planning benefits that can be incorporated into the trust:

  • Lifetime Benefits. If the grantor is unable or uninterested in managing the trust, the grantor can hire an investment advisor to manage the account or a spouse, child, trusted friend or a trust company to act for the grantor.
  • Incapacity. A spouse, child, trusted friend or trust company can be named to care for and represent the needs of the grantor/beneficiary. The spouse, child, trusted friend or trust company will manage the assets during incapacity, without having to declare the grantor incompetent and petitioning the Court for a guardianship. After the grantor has recovered, he or she can resume the duties as trustee.

A properly funded revocable trust is a great tool for estate planning because it bypasses probate, which can mean considerably less expense, stress and time.

In addition to a trust, please ask the attorneys of Michael T. Huguelet, P.C. about the rest of your estate plan: a will, powers of attorney, medical directives and other considerations.

The law office of Michael T. Huguelet, P.C. would be honored to sit down with you to discuss your needs and develop an estate plan to help you achieve what you want to accomplish.

Reference: Forbes (February 20, 2019) “Revocable Trusts: The Swiss Army Knife Of Financial Planning”

Why Do I Need a Will?

Estate planning is a very personal process. It is not a one-size-fits-all task. When a person has no close relatives (other than perhaps a spouse), the decisions needed to create an estate plan can be overwhelming. Kiplinger’s recent article, “No Children? Why You Still Need an Estate Plan,” provides some ideas, if you find yourself struggling:

Incapacity. Everyone should have an advanced directive for health care and a durable power of attorney for legal and financial decisions. These let you decide who will be in charge of your medical and legal affairs, in the event you are no longer able to make these decisions for yourself. If you become incapacitated without these documents, your relatives will be involved in a guardianship or conservatorship proceeding to appoint someone (who you may not know) to make these decisions for you.

Trusts. This is a legal document that can be used to manage many of your assets during your life, and facilitate the distribution of your assets when you pass away. A trust has two big advantages: it often helps avoid probate at your death and allows you to distribute your assets privately. Without at least a will, your family (as determined by the state intestacy laws) could inherit your assets. The best way to avoid these issues is to create a trust.

Deciding What to Do with Your Assets. This can be a tough decision.  Children often want to make sure that their parents are cared for. However, since many of us will survive our parents, successor beneficiaries must be named. Nieces and nephews are typically beneficiaries, when there are no children. However, you may want to consider friends, pets and charities. Talk to the estate planning attorneys at Michael T. Huguelet, P.C. to review the best way to leave your assets.

Charities. These can also be included in your estate plan. Charitable bequests can be either a specific bequest for a general or specific purpose. If the charitable gift is sizable, contact the charity beforehand to be certain your gift is used, and recognized, in the way that makes you most comfortable.

Pets. Your estate plan can also help establish who will take care of your pets, when you’re no longer here. You can leave the pet and some money to a trusted friend or family member, or you can create a formal pet trust to provide for your pet. Either way, create a plan so your pet can be properly cared for, if you are no longer able to do so.

When it comes to estate planning, you can decide who will inherit your assets. To be certain your wishes are executed as you intended, it is important to have the proper planning in place to avoid probate and allow for an efficient transfer. The attorneys at Michael T. Huguelet, P.C. would be happy to sit down with you, and assist with the decision making process so you have piece of mind that your assets are left to those who mean the most to you.

Reference: Kiplinger (February 11, 2019) “No Children? Why You Still Need an Estate Plan”