To streamline the Probate process, it is essential to develop a comprehensive estate planning strategy. This ensures that your family can access your assets after your passing. A personal representative, often an attorney, acts in the best interest of the deceased during probate. This representative is responsible for utilizing clauses from the UTMA and UPC throughout the probate process. It is crucial for the attorney to establish a clear understanding with the client regarding the estate plan and probate procedures.
When estate planning does not align with probate laws, various issues can arise, such as the enforcement of intestacy laws or the seizure of property. A Will is particularly important if you have someone to whom you wish to leave your wealth, such as a spouse, children, or a charity. If a decedent intends to leave money for their family, they should address and mitigate any liquidated liabilities of their estate. Identifying potential errors while drafting a Will is also crucial.
Common Pitfalls with Older Wills and How to Address Them
Older Wills can lead to several complications:
- Finding multiple original Wills of a decedent can create conflicts of interest.
- A Will deposited at the county courthouse can cause confusion if a new Will is executed without revoking the previous one.
- An opposing party might discover an older Will, prolonging the dispute process.
Having multiple older Wills increases the likelihood of family disputes over the bequeathed property and assets.
Challenges with Lengthy Wills
Wills that extend over 8 to 12 pages can distract clients from effectively executing them. When a client has to read through numerous pages to grasp the document’s essence, it can detract from their ability to clearly express their true intentions in the Will.
It is important to avoid overwhelming the client and to create multiple safeguards against inconsistencies in the documents. Keeping clients engaged by helping them draft concise Wills is also essential.
Understanding Next of Kin and Heirs
The concept of ‘Next of Kin’ is crucial for the fair distribution of assets after a Will-Maker’s death. Clients often worry about why their Next of Kin, who may not have been responsible or caring, should inherit their wealth. Attorneys can explain the importance of the family tree and the legal jurisdiction over necessary parties to the testator.
Additionally, attorneys should prepare a Scrivener’s Error Affidavit to address any errors, such as incorrect addresses or misspellings, and ensure that all parties involved in the Will are correctly identified. This helps avoid additional steps the court might need to take to locate the correct beneficiaries.
Financial Considerations in the Probate Process and Avoiding Probate
General bequests are often distributed as token bequests to show appreciation to the recipients. For smaller bequests, including survivorship clauses in a Will is important to ensure that the decedent’s wealth is used appropriately by adult beneficiaries. Clearly defining the number of executors and who qualifies as an executor in the Will is also crucial.
TOD (Transfer on Death) and ITF (In Trust For) accounts link beneficiaries to accounts holding their respective gifts. These accounts become effective upon the decedent’s death. Attorneys should consider using Operation of Law Transfers for small bequests if their clients wish to avoid the traditional Probate process.
Here are some suggestions for leaving money to unidentified or yet-to-identify parties:
- Inform clients about the state notice requirements for Probate.
- Consider inter vivos trusts for foreign distributees or legal beneficiaries.
- Explain the differences between Probate Assets and Testamentary substitutes.
Concluding Thoughts on Estate Planning
The probate process can be significantly simplified if an attorney is involved in drafting the Will. Clients should appoint a Bailee of the Will to ensure its proper execution and clearly identify all parties involved. Handling a Will alone can be overwhelming, but having an attorney can alleviate the stress of creating a Will and exploring alternatives to traditional probate procedures and estate planning.
