If you’ve ever prepared for your future, you may have heard the terminologies estate planning and probate law. There are 2 main differences between estate planning and probate law: timing and process.
Estate planning is assembling a financial plan that will consist of documents like a will and oversee your estate after your passing or incapacitation. Probate is the act of producing an official will or trust that is enforceable in court.
Probate Law
Probate Administration Attorneys will sometimes use the term “probate” as an umbrella term. A sample would be utilizing “probate” to pertain to anything aside from the validation of a will, like “probate” court or “probate” assets. Probate could also refer to the administration of a will or trust.
The process of creating an enforceable will takes place in probate court. A judge will usually hold a hearing to determine whether or not the will stands. The custodian, or executor of the will, will bring his/her document to the hearing. Preparation for validating a will usually involves the executor’s signing and attesting by a witness. When necessary, the custodian can also come prepared with witness signatures or affirm the validity of the will under oath.
If a person dies without a will specifying how to disperse their probate assets, it will be up to the judge to rule on the process of distribution. “Probate assets” describe anything the decedent owned or partly owned but did not account for in their will dealing with assets. There are some assets that do not apply to a probate process, like a life insurance policy. A life insurance policy would be due upon passing to a named beneficiary. A probate administration attorney can help you identify which assets are probate and which are not.
To wrap up, the process of probate is performed through probate court. How to distribute your property after you have deceased is decided in surrogate court. Having a will that is validated before demise will assist with this process. Some assets may be distributed to heirs, or if there is no will, laws of intestacy will apply. The assets to be distributed in a will are known as “probate assets”, which were previously owned by the deceased. Probate assets require a probate court order to pass the title. Probate assets can include:
- Real estate property
- Bank accounts
- Cars, watercrafts or any other vehicle
- Personal property (e.g. watches, appliances, etc)
- Interests in a corporation, LLC, or partnership
- Brokerage accounts or Life insurance policies
Inevitably the court will determine and gather probate assets for distribution. The court will receive the first cut in costs, followed by any existing creditors, and last but not least the decedent’s beneficiaries.
Probate court processes can be prompt. The court will need to contact all individuals with any interest in the estate. A great probate administration attorney can most likely help prevent any problems by giving appropriate legal counsel during the estate planning process.
Estate Planning
An estate planning lawyer is essential for guidance and consultation during estate planning. There are many laws and rules bearing on the creation of a will or trust. Thusly, an estate planning attorney who recognizes with the law can help you interpret and properly create a will or trust that is enforceable in court. Since every individual’s estate is unique, it’s most ideal to seek expert legal advice pertaining to the estate planning process.
Anything that you own, including debts, is considered part of your estate. Many people, and primarily those with family, will want to entrust their assets to be dispersed after their death. Through a will or trust, you have the ability to appoint assets to specific family members or beneficiaries. An estate planning attorney can help you implement this plan so that the family is cared for after you are gone. You will want to know that after grieving a loss, your family will not have the extra stress of dealing with the estate legalities. The estate planning attorney can help you analyze taxes on the estate and any fees associated with the processing of the estate, as well as legal fees.
Estate planning also manages how your wishes will be met in certain circumstances. Planning the terms of your healthcare you’ll receive in the unlikely event of disability or incapacitation falls under estate planning. A living will can speak to whether you want to be kept on life support or if you want your loved ones to attempt to resuscitate you if you die (also referred to as a DNR order).
If you plan to set aside money for someone who can not look after themselves, this would also be specified in the estate plan. An estate planning attorney can help you structure your plan to ensure that the person of interest can receive government benefits while also receiving your assets.
To wrap up, a will or trust has control over distributing probate assets of a decedent. However, a will does not have jurisdiction over non-probate property and its distribution. This is where estate planning becomes important. Certain assets sidestep probate court and go directly to the beneficiaries of the decedent. Non-probate assets can include:.
- Property held in joint tenancy
- Property that is in the name of a trust
- Bank accounts in joint names or Brokerage
- Vehicles held in joint names
- Life insurance accounts to others
- Others Retirement accounts
Everyone has an estate, regardless of how large or small. It can include all of your properties, real estate, cars, checking accounts, savings accounts, and even debts. Estate planning is the process of making an outline before your death and naming those who will receive your possessions after you are gone. It will also include:.
- Instructions for your care if you become disabled or handicapped before death
- Naming a guardian or representative for minors
- Care instructions and providing for loved ones through life insurance and/or disability income
- Minimize legal fees, taxes, or court costs
- Any other instructions for passing along valuables and values
In sum, planning out your will after you are gone is essential. It is especially important to distinguish which assets are probate and which are non-probate. Only then can you take the appropriate action to transmit your property accordingly after you are gone. Planning for the after-effects of your future after you are gone is not easy, nor one that most people look forward to doing. But having a skilled and knowledgeable attorney can help make sure the process is performed accurately.
St Petersburg Estate Planning & Probate Attorney
5858 Central Ave, suite d.
St Petersburg, FL 33707
( 727) 381-2300
www.bestlegacylawyer.com
Riverview Estate Planning & Probate Attorney
12953 US-301 # 102d
Riverview, FL 33578
( 813) 639-8111
www.bestlegacylawyer.com
