If you are in charge of handling the estate of a loved one or family member after his or her death, you may be confused about where to start. Although you have likely heard the term “probate” before, you may not understand exactly what it refers to or whether or not your loved one’s estate must go through the process. Although there is not a universal answer to the question, there are some common factors that go into determining whether or not probate is required.

State laws govern wills, trusts and estate matters. If your loved one died a resident of California, then California law determines whether or not probate is required. If your loved one was legally considered to be a resident of another state at the time of death, then the laws of that state apply and the estate must be probated in that state.

If a Last Will and Testament was not executed prior to death, State Law  determines who the legal heirs are to the estate.

The size and/or value of the estate as well as the type of assets owned by the estate are often important factors in determining which type of probate is required.

Most states offer a simplified probate process when estate assets are minimal and uncomplicated.

Formal probate can take a significant amount of time to complete and can be both complicated and costly., plus it is public.

If you are in doubt about whether or not probate is required, and if so which type is available, consult with an estate planning attorney.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

Whether you are a potential beneficiary, heir, or even executor of an estate for someone who has recently died, you may have numerous questions surrounding the probate process. One of the most commonly asked questions is “what happens to the decedent’s property?” Although each estate is unique, and the manner in which estate property is distributed depends on a variety of factors, there are some common ways in which estate property is handled after someone’s death.

Some estate assets may actually be able to avoid the probate process altogether. An example of this is an account that is held as “pay on death”. As the name implies, upon the death of the primary account holder, the assets are transferred to a beneficiary. The proceeds of a life insurance policy are another example of an estate asset that can transfer immediately after death without probate.

Specific bequests made in a Last Will and Testament are another manner in which estate assets are handled. A gift of “$25,000 to my nephew”, for example, or “my coin collection to my son” will be honored when possible; however, the assets will not be transferred until the completion of the probate process.

Anything that is not transferred pursuant to a specific bequest will then be liquidated. The proceeds of the sale of these assets are then distributed to the beneficiaries according to the terms of the Will. If no Will was left behind, the proceeds of the sale of the estate assets will be given to the heirs of the decedent under the state’s intestate succession laws.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

Nebraska is poised to be the first state to address the issue of where social media accounts fall within the realm of estate administration. Recently introduced legislation is aimed at giving the executor of an estate access and control over social media accounts, micro-blogs and e-mail accounts of the decedent.

What happens to a social media, email or blogging account upon the death of the account holder has heretofore been decided predominantly by the account provider. For example, social media giant Facebook currently has a policy that calls for the creation of a memorial page on the decedent’s page once they have been properly notified by a family member that the account owner has died. Although “friends: of the decedent may continue to post messages on the decedent’s wall, no one can update the status, delete the account or log on for any other reason. If the Nebraska legislation succeeds, the executor of the decedent’s estate will the be allowed to do all of that.

Even if you do not use social media sites such as Facebook, the Nebraska legislation points out how the definition of “assets” has changed over the years. In the digital age that we now live in, it is important to reevaluate what we consider to be assets and how we wish to handle them. If you have any social media accounts, blogs, emails or any other similar electronic accounts, you may wish to speak to your estate planning attorney regarding how to handle them in your estate plan.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

Probate is the legal process by which the assets of a decedent are passed down to beneficiaries or heirs upon death. Each individual state determines when probate is required and which type of probate must be undertaken; however, there are some similarities between the states.

Formal probate is typically required for estates with considerable or complex assets, when the decedent left no trust or when someone is contesting the will or trust. Where formal probate is not required, some states allow a more informal version of probate which may be called small estate administration or something similar. The probate process begins when a petition to probate is filed with the appropriate court. This is usually done by the person named as executor in the will or by another adult family member or loved one if a will was not executed by the decedent.

Once the probate petition has been filed, the court will have to approve of the appointment of the executor or appoint an administrator in the case of an intestate estate–an estate without a will. The job of the executor/administrator is to handle the day to day administration of the estate with court supervision. The next step is generally to provide the required notice of the probate to heirs, beneficiaries, creditors and the general public. The decedent’s assets are then inventoried and valued. Creditor claims are also considered and approved or denied by the executor/administrator. Once all debts are paid, including estate taxes, and the court approves the final accounting submitted by the executor/administrator, the remaining assets can be distributed and the executor commission and attorneys fees paid.  All of the proceedings and filings are available to the general public, including predators.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

Estate planning frequently attempts to accomplish numerous goals and therefore often employs a wide variety of available tools. One simple tool that is commonly used is the “pay on death” account. Converting accounts to a “pay on death” account allows assets to be transferred upon your death without the need for them to pass through probate.

Probate is the legal process that is frequently required before estate assets can be transferred to beneficiaries or heirs upon the death of a decedent. Depending on the size and complexity of the assets held by the decedent, the probate process can take months, or even years, to reach a conclusion. Assets of the estate, therefore, are typically inaccessible to the beneficiaries or heirs of the estate until the probate process terminates.

A “pay on death” account avoids probate altogether by legally requiring the assets held in the account to be transferred to the designated beneficiary upon the death of the primary account holder. State laws will vary with regard to which type of accounts can be converted to a “pay on death” account. In most states, bank, investment and retirement accounts as well as security registrations can be converted to a “pay on death” account. Some states also allow vehicle registrations and/or titles to real property (but not California, as to real property) to be converted to a “pay on death” status as well.

Converting an account to a “pay on death” account typically only requires you to fill out the appropriate forms and designate the beneficiary. Contact your account holder or consult with your estate planning attorney for additional information.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.

All trusts operate in basically the same way. A legal agreement is created whereby the maker of the trust, commonly referred to as a maker, grantor or trustor, places assets into the trust for the benefit of a beneficiary. A trustee is then appointed to oversee and administer the trust. A wide variety of specific use trusts have evolved from the basic trust concept. One evolution is the asset protection trust.

Not surprisingly, the main purpose of an asset protection trust is to shield or protect assets. You may wish to protect assets from creditors or from taxes. It may also be necessary to place assets in a trust in order to qualify for federal or state benefits that have an asset resources limit that may prevent you from qualifying.

Domestic asset protection trusts are governed by individual state laws; however, there are similarities between the states. Within the asset protection trust category, there are two sub-categories — self-settled trusts and trust where the grantor is not a beneficiary. A basic asset protection trust usually has to be an irrevocable trust. When you create the trust, you will name at least one beneficiary who will be able to enjoy the benefits of the trust without actually having any ownership interest in the assets. Because the beneficiary has no ownership interest in the assets, creditors cannot access the assets to satisfy debts. You may also include a spendthrift clause which prevents the beneficiary from alienating his or her interest in the benefits to a creditor or third party. This prevents depletion of the trust assets now, or in the future, due to debts owed by the beneficiary.

Some states now allow self-settled trusts as well. In a self-settled trust, you are both the grantor and the beneficiary. This option is particularly beneficial when attempting to qualify for federal or state benefits when a resource limit can disqualify you from benefits or services. As a general rule, in order for a self-settled trust to be legal, the maker cannot also be the trustee of the trust.

John Rogers Burk, A Law Corporation is a member of the American Academy of Estate Planning Attorneys.