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Probate is the legal process of administering the property and assets left by someone when they die (the decedent). The probate process also oversees the payment of claims, debts, taxes and other related expense against the estate are all paid according to the law.
Probate property is defined as property in the decedent’s name alone and is distributed by the directions of the will or according to the law. The probate proceedings take place in the county where the decedent lived and owned the property. If the decedent also owned property in another state, additional probate court proceedings may be required in that state.
Some property owned by the decedent may not be considered in the probate process and is not known as probate property. Any property held by the decedent and another person jointly, any property held in a trust, any bank or other accounts that are “payable on death,” or “transfer on death” to a named beneficiary, and any insurance and retirement benefits that have a named beneficiary are not considered probate property. However, all property is considered estate property and is still subject to federal or state taxes, whether or not it is probate property.
The probate process is necessary to legally give the executor or personal representative of the estate the right to handle the decedent’s probate assets.
The process gives the executor the duty of safeguarding the assets and property of the estate for the benefit of the heirs and beneficiaries.
Probate then allows for the creditors against the estate to be able to collect any debts owed by the decedents before the remaining assets are distributed to the heirs. There are costs in the administration of this sometimes lengthy process that must be paid from the estate also.
What are the duties required by probate? The first task of the probate court is to appoint a person to administer the estate. This person is called the personal representative or administrator, or if so named in a will, the executor. The executor or administrator can be a single person, a trust company, or a bank.
The executor or administrator has many tasks to complete in the probate process. He or she must care for all of the property and assets of the decedent. He or she must receive any payments due to the estate from interest, income, or dividends of any sort and then collect and legitimize any debts due to the estate.
Then, all names, addresses, and pertinent information about the heirs and beneficiaries must be gathered. The executor or administrator must then collect and validate any debts against the estate and pay the outstanding debts, which includes filing state and estate tax returns and paying the taxes for same.
The last task of the administrator is to distribute the remaining assets to the heirs and beneficiaries according to the will and the laws of the court.
The probate court judge and the probate court task supervises the entire process. Each separate action requires that the appropriate paperwork and numerous documents be filed in a timely and lawful way.
Each step of the process can be tricky and time consuming. As an executor or personal administrator, he or she may want to consult an attorney specializing in probate matters and a certified public accountant to handle the tax issues.
Probate is the process of handling the estate and assets of a person who passes away. The probate courts make sure that all the outstanding debts of the deceased are paid, and that the beneficiaries of the estate get what is left.
The important documents relating to the probate court case are known as the probate records. The first and most important document relating to the probate case is the will. The will should list the assets of the estate, who will be the beneficiaries, who will act a a personal representative for the estate, and who will be the guardian for any minor children. The will has to be legally drawn up with properly witnessed and notarized signatures.
There are many ways to draw up a legal will. Courts and law firms give away forms for will writing, and today, there are books, CDs, computer software, websites and e-books dealing with writing wills. Whichever method you choose to use to write your will, it is a good idea to get a lawyer specializing in wills to look over the final draft.
Another important document in the probate process is the proof of assets. The proof of assets is basically a list of the estate assets, which can include bank accounts, IRAs, stocks, securities, life insurance benefits, property, Social Security benefits, Tax Refunds, and any other item of value owned by the deceased.
There are other important administrative papers that are also necessary in the probate process. One of these is the petition for letters of administration, which is filed with the death certificate.
A judge conducts the probate court proceedings. With a letter of appointment, he appoints a person as executor of the will who administers the assets and handles the general proceedings.
Sometimes the judge will hold probate hearings and answer questions that are raised about the probate case by issuing written directions or “orders.” For example, the judge will issue an order to pay the deceased’s debts and taxes, then divide what is left among the beneficiaries.
The next step in the process is to post a Notice of Administration. This document is also known as the Notice to Creditors. The personal representative will give this notice after identifying, appraising, and safeguarding the probate assets, to the local newspaper. This document is published in the newspaper so that anyone, creditors included, can learn of the current status of the estate.
This will allow the creditors to take action if there is a claim to be filed against the account. The creditor would then file a “Creditor’s Claim,” which would allow them to get back any money owed by the deceased. In some states, like Washington, the Notice to the Creditor is optional.
After the creditors have been paid, the personal representative will distribute the remaining assets to the beneficiaries and heirs, who will then sign a document, the “Receipt and Waiver,” which says that the beneficiaries received their fair shares of the estate.
The last step for the personal representative is to submit all of the Receipts and Waivers and a document known as the “Declaration of the Completion of Probate” to the court for final processing.
Finally, the probate court will declare an order for the transfer of assets and property to the beneficiaries and heirs. With this declaration, the probate process is completed.
Probate is an essential part of estate management. The rules differ from state to state so be sure to look up the most recent information on probate in your state.
NOLO Publishers also has a useful website with Probate FAQs and a place to make your own will online. Go into your local library as well; chances are they will have some of the NOLO books right there for you to consult.
2008-04-06 17:58:34
Book Review: Porn for Women (Paperback)
by Cambridge Women’s Pornography Cooperative (Author), Susan Anderson (Photographer)
Chronicle Books $12.95
Books Description
Prepare to enter a fantasy world. A world where clothes get folded just so, delicious dinners await, and flatulence is just not that funny. Give the fairer sex what they really want beautiful PG photos of hunky men cooking, listening, asking for directions, accompanied by steamy captions: “I love a clean house!” or “As long as I have two legs to walk on, you’ll never take out the trash.” Now this is porn that will leave women begging for more!
About the Author
The Cambridge Women’s Pornography Cooperative asked women, young, old, rich, and poor, “What really, really gets you hot?” Armed with their findings, they worked day and night to create Porn for Women. Susan Anderson is a Los Angeles-based photographer who believes the future of porn shouldn’t be in the hands of men alone.
Review:
This has offended a lot of people at Amazon, most likely because the title is misleading. Chronicle had gone for the SEX SELLS formula of marketing for this book and its spin offs, including calendars, postcards, and other books in the series, including one for new moms.
The book is comprised of PG-rated photos of our supposed hottest fantasies getting fulfilled, mainly of guys doing the housework for us for a change, and saying the perfect thing, like, “I’m so interested in what you’re saying..please tell me more!”
The whole point of porn is that it is just a fantasy. In this book, you’ll get some cute guys, and some sense of “If only my man did that.” Yes, for many women, it would be super to get a fantastic meal at the end of the day that you didn’t cook yourself! I was very blessed with a hubby who WAS able to cook that well, and do the vacuuming plus the ironing too! There ARE men like that out there!
For those who object to it being sexist, old-fashioned, or just plain silly, well, it is supposed to be a joke. Everyone I have shown my gift copy too thoought it was funny. Yes, a guy who puts down the toilet seat, or thinks you are too thin, now THAT is HOT!
This is not EXACTLY my total fantasy, I have to admit, mainly because I don’t fixate on finding fault with my partner.
I do just want to say though, that perhaps women should not take the little things like the toilet seat so seriously, and do we really have to worry so much about ironing?
Not to mention the fact that the only reason we should worry about our weight is for health reasons, not because of body image. We are far too self-conscious about the weight issue, for the wrong reasons. Worry more about being healthy, than HOT.
Finally, every woman knows what a man finds hot,”a woman with a good sense of humor, lot of self-confidence and sexiness. How do you get sexy? By not sweating so much of the small stuff around the house, and focusing on romance instead.
So if you have a good sense of humor, you will probably enjoy this book. It will definitely get a good giggle as a bachelorette party gift.
Planet Earth – The Complete BBC Series
DVD ~ David Attenborough
Price: $54.99
5.0 out of 5 stars
Totally wonderful, one of a kind. The BBC edition is terrific.
I first saw the series on the TV in the USA, and was so stunned by the photography, that I instantly wanted to own the DVDs. Even my parents stopped talking and sat there staring with their mouths open, it was so gorgeous.
So, once I had decide to by the DVD, I went to Amazon, read the reviews, and was thrilled when I found out that the BBC had its own edition, with world-famous British naturalist David Attenborough’s as the commentator, rather than Sigourney Weaver for the American Tv edition.
Well the difference is like night and day. I love Attenborough’s excellent, engaging commentary, his enthusiasm and passion for his subject, compared to Weaver’s flat monotone.
I know Attenborough can seem to get a bit carried away, but there is nothing like an expert who really knows what he is talking about versus someone reading from a script Or even worse, trying to make jokes about what she sees, and totally misses the point of what is happening on screen. Some of the comements were crass, tasteless, and diffeintely not educational.
The BBC edition is a real keeper, but if you any reason you can’t find it, get the DVD no matter what. This will be a great gift for children so they can have a record of animals and habitats that might not be around for much longer!
The DVDs are a real visual feast, totally fascinating. The shows are organized by habit, to help us understand the kinds of creatures that can live in each.
The footage of the Himalayas and the snow leopards is the only film of its kind in the world and was totally incredible.
The birds in Papua New Guinea performing their ritual mating dances is a show stopper. I wanted to show one of my friends that one segment. He not only played it back 10 times, he insisted on watching the whole episode even though he had to run to work!
The ocean episode is totally fascinating, and I believe are the deepest photos ever taken, using a robotic submersible. It makes you realize that man has gone to the moon, but still doesn’t know much about the things living on the sea floor. The vampire octopus really has to be seen to be believed.
This is one of those landmark TV programs from the BBC that anyone will be hard put to surpass. Own a bit of history, and get it now before global warming renders our polar bears and other arctic creatures extinct.
There are many confusing terms and commonly used phrases that are related to the probate process and estate planning in general. Here are some definitions to help the layperson understand the sometimes complex process of probate.
AB Trust- This is a trust designed to take advantage of the personal estate tax exemption. It also allows the surviving spouse use of the assets, no matter what, for the remainder of his or her life.
Administrator- This person is appointed by the court to manage and oversee the court process for the estate of a deceased person or “decedent” who has died without leaving a will.
Attorney-in-Fact- This person is designated to act as an agent for the executor of the will.
Basic Will- The basic will is designed to give everything to the spouse, if living, or the children who are 18 or above.
Beneficiary- The beneficiary is the person who receives property or other assets from a will, insurance policy, or contract.
Durable Power of Attorney for Health Care- This is a written document that gives someone the power to make medical decisions for another person in case that person becomes incapacitated in some way.
Durable Power of Attorney for Property- This is a written document that gives someone the power to make property and financial related decisions for a person who has become incapacitated in some way.
Estate- The property and assets of an individual, including all real estate, bank accounts, life insurance policies, stocks and bonds and personal property.
Executor- The person or persons named in the will who will manage the estate of the decedent. He or she will inventory all properties, pay of debts and taxes, then distribute any remaining assets to the beneficiaries and heirs.
Fiduciary- The trustee who is identified in a trust, or an institution or person who is legally responsible for the distribution, management, or investment of funds.
Grantor- The person who gives assets to another, usually by way of a trust.
Inter Vivos Trust- A trust created while a person is still living that holds property in trust for the benefit of someone.
Intestate- When someone dies without a will.
Joint Tenancy with Right of Survivorship- This term refers to co-owning property. When one owner dies, the other owner is legally entitled to take possession of the property, no matter what the will says.
Living Trust- This is a trust that is established during a person’s lifetime that is used to place property. Because the basic living trust does not effectively use the personal estate tax exemption if the estate is large, then it is often recommended for married couple to set up AB Trusts.
Living Will- The document that outlines a person’s wished in regards to life-sustaining treatment should he or she become terminally ill or in a vegetative state.
Marital Deduction- A deduction set up by the government that allows one spouse to leave his or her estate directly to his or her spouse upon death without having to pay gift or estate taxes.
Pour-Over Will- Everything is distributed into a trust by this type of will.
Power of Appointment- A “general” power of appointment gives a person the unlimited power to distribute a decedent’s property. A “limited” power of appointment gives restrictions to the person on who may receive the property.
Probate- The process in court of reviewing, legitimizing, and processing claims against a will, or in the case of no will, settling the estate according to inheritance laws.
QTIP Trust- A trust that is set up that allows a person to leave his or her assets to his or her spouse for their use during their lifetimes, but still be able to control where the assets go upon the spouse’s death.
Trust- A written document that provides for property being held by someone for someone else.
Trustee- The person named in a trust who manages and distributes the property for and to the beneficiary.
Will- A legal document that states how property and assets will be distributed upon a person’s death.
The word “probate” is taken from the Latin word, “probere,” which means “to prove.” Probate is the legal process whereby a will is proven valid or invalid, and the total assets of the deceased person are counted, appraised, and inventoried.
Probate court also makes sure that all taxes and debts against the estate are paid, and then the remaining assets are divided among the heirs and beneficiaries.
If a person has all of his property is his or her name, these are known as his or her “assets.” Assets include real estate, tangible property, such as jewelry, cars, etc, and intangible property, such as bank accounts, and stocks or bonds.
Most of the time, a person’s spouse and children would inherit his or her assets after he or she dies. However, first they must prove that they are legal heirs by submitting marriage and birth or adoption records.
Before the heirs can take control of the assets, the assets must be authenticated by the courts. To accomplish this, the heirs must submit the person’s death certificate and documentation that all of the assets belong to the deceased.
The probate court will then appoint a personal representative to administer the probate case. He or she will inventory, appraise, and authenticate the assets.
There are special situations that arise that are exceptions to this process. For example, certain assets belonging to the deceased may not go through the probate court. For instance, if the deceased appointed someone as beneficiary when opening a bank account, the funds from the bank account would be transfered to the beneficiary into the beneficiary’s account directly upon the bank holder’s death, without going through the probate court.
The process is different if the deceased prepared a document where he or she clearly spelled out how much and too whom the assets should be given. The deceased may have named a personal representative, but if he or she did not, the court would then appoint and “executor” and a guardian for any children involved who may need help managing any assets.
This document is called a “will” and should have been notarized and signed by two or more witnesses. If a person dies after writing a valid will, then he or she is considered to have died “testate,” which means “to make a will.” The person writing the will is known as the “testator.” Conversely, if someone dies without leaving a will, then he or she is known to have died “intestate,” and the beneficiaries would have to be determined appropriately.
Because the law requires that the heirs or beneficiaries prove the validity of the will, the will has to go through the probate court process. Only then will the probate court begin the process of paying any outstanding debts and taxes against the estate, and then divide the remaining assets to the heirs and beneficiaries, according to the directions of the will.
The court issues a formal order to transfer the property directly to the heirs and beneficiaries according to existing inheritance laws.
How long does the probate process take, you might wonder. The completion of the process depends upon a number of things, such as the size of the estate, worth of the assets, validity of the will, the appointment of the executor or personal representative in case there is no will, and locating and notifying all of the beneficiaries.
If the paperwork is not too complex, then the process will generally take less than a year.
However, if the will is contested or anything untoward happens in the process, probate can take many years to complete.
