In my estate planning firm and in my estate administration, I am asked the same questions: "What is probate?" and "Why should it take so long?"
Usually when people tell me that they want to avoid probate, they mean that they do not want their estate to be administered through a judicial process, whether the person has a will or not. The exact definition of approval is not so important. In essence, the administration of an estate (if a will is provided for) or a succession without a will (if there is no will) is the legal process for collecting the property of a deceased individual; repay the creditors of the deceased; and pass on the remaining assets to the person&39;s heirs (if there is no will), to his beneficiaries or beneficiaries (if there is a will).
The process more appropriately calls estate administration, but as people tend to view these two processes as an audit, I will continue to use this term throughout this post. The approval process generally includes three periods: (1) start; (2) administration; and, (3) the closure. This article will discuss the beginning and the events leading to the beginning.
1. What assets make up my probate estate?
Before discussing the beginning, it is important to understand what constitutes a probate sequence. Any property belonging to the deceased on the date of death that will not be automatically transferred to a named person will be included in your probate estate. For example, a bank account with a death beneficiary will automatically pass to the designated beneficiary, without probate. In addition, the property belonging to a trust created by the deceased will not be part of the deceased&39;s probationary estate, since the deceased did not technically possess the property at the time of his death.
Common probate assets include real estate, stocks and bonds, vehicles, bank and brokerage accounts, and various personal property.
Retirement accounts and life insurance are generally not subject to probate since they usually have named beneficiaries. However, if a beneficiary is not designated or dies before the owner / insured, the estate of the owner / insured is usually the default beneficiary.
2. Is full registration necessary?
A complete probate procedure may be useless if: you have a fairly small estate upon your death; you only have assets with a death designation or are jointly owned with survivor&39;s rights; or you have transferred your property to a trust.
In Oregon, where a deceased&39;s estate consists of real estate valued at less than $ 200,000.00 and personal property valued at less than $ 75,000.00, a small estate proceeding may be used to transfer the property of this deceased to his heirs or beneficiaries, if he has will. The process is relatively easy and much less expensive and takes a lot of time than a full registration. A lawyer is probably needed to ensure compliance with the various laws. People often ask me, "Can I use an affidavit in a small estate if my father&39;s house has a value of $ 300,000.00, but a loan of $ 150,000 hurts him? The answer is no, because the limits are based on raw values and not on net values. Since the gross value of real estate exceeds $ 200,000.00, probate is required.
Husbands and wives often own their home, bank account and other property as "spouses". Thus, when the first spouse dies, the surviving spouse will be the sole owner of the property. No approval is necessary. When the wife dies, probate will probably be required to transfer the property to her children or other named beneficiaries.
As another example, suppose that after the death of the wife, the wife has transferred her home into a revocable living trust. She maintained a brokerage account with $ 78,000.00 in her name with her children as beneficiaries to pay at death. She also had a savings account of $ 5,000.00 that she had forgotten and that she had never transferred to her trust, but that account had no savings. beneficiary at death.
When she dies, can her children use the small estates process? The answer is yes. Although his entire estate consists of personal property over $ 75,000, the amount subject to probate is well below this threshold because the brokerage account is transferred directly to the named beneficiaries. and that his house belongs to his trust.
Small estate procedures should be used to transfer the savings account to the wife&39;s heirs, but a full audit will be avoided.
3. Approval is required. And then?
Suppose the woman has a will and her daughter is named personal representative. She will administer the estate of her mother. Her father died a few years ago and the daughter has two brothers.
At this point, she may have a vague understanding of her mother&39;s estate and searched for a will, trust and other estate planning documents. If she is lucky, her mother follows the advice of her lawyer and places the original documents in a safe or safe.
Since probate is a complicated and confusing process, her daughter will need a lawyer to help her navigate the waters of probate. She can use any lawyer with whom she feels comfortable.
During her initial appointment with her lawyer, she will bring the will, the death certificate of her mother, various documents identifying the property of her mother, as well as her brothers and sisters. Contact information. She can also provide information about the creditors of her mother&39;s estate (credit card companies, unpaid medical providers, etc.). On the basis of the information provided, the prosecutor will draft an application for probate or a request for administration of an intestate heritage, depending on whether or not there is a will.
As a general rule, the person designated as the personal representative in the will asks the court to manage the estate. What happens if the will does not exist or if the personal representative does not want to serve and there is no appointed successor? The court gives preference to a surviving spouse and then to a child or next of kin.
If there is no surviving spouse and no next of kin, then if the state provides public assistance to the deceased, the director of social services or the director of Oregon Health Authority may appoint a lawyer to the position of personal representative of the deceased. There is no surviving spouse or next of kin. The Department of Veterans Affairs is the following. followed by any other person. These are just statutory preferences. The individual must still be qualified as a personal representative.
4. The petition is filed, what happens next?
The motion is essentially a request to the court to admit the will filed with the probate application and to designate the person named in the application as a personal representative. Notice of the filing of the petition shall be given to various governments, to the heirs of the deceased, to the beneficiaries named in the will and to other interested persons. These individuals will have the opportunity to oppose the appointment of their personal representative and to seek further pleas from the attorney representing the personal representative.
In the future, I will discuss what will happen once the application is filed and the first steps associated with the administration of Oregon Estates.
© 3/18/2014 Kevin J. Tillson of Hunt & Associates, PC All rights reserved.
*** This article is informational only and the circumstances surrounding your case or legal matter are unique. This article does not constitute legal advice and should not be invoked without consulting a licensed legal professional. ***