Most people think of probate as a process where the court determines who gets what when someone dies. While this is true, there is actually much more to it. Probate court also governs aspects of the estates of living people, particularly minors or adults who suffer from mental illness, are disabled, or who have become incapacitated.
Probate law can generally be divided into three categories based on whom it affects:
The probate process can seem frightening or intimidating, especially if you don’t know which step to take first. Let us help.
Upon One’s Death
When called upon to deal with the financial affairs of someone you’ve lost, it can be difficult to set aside grief and worries in order to focus on details or long-term needs. And as a trustee, personal representative, beneficiary, guardian of the decedent, or guardian of the estate—the executor—you have some specific responsibilities. In the movies, it all starts with a “reading of the will,” but this doesn’t happen in real life.
After a death, probate is a court procedure where a will is proved either valid or invalid—considerations include whether it is the most recent will, if circumstances were appropriate when the will was created, and whether there are other claims to the property that would preclude it from being passed to the named heir or heirs. Sometimes there is no will and probate court oversees matters in that situation, as well.
Your lawyer’s assistance might include compiling and valuing assets, selling assets to pay debts, claims or owed taxes, and distributing net proceeds to heirs. For these issues, or responding to creditor claims, helping heirs settle disputes, or determining how an inheritance will impact the heirs’ taxes, our Tax & Estate Law Team is here to guide you through each step providing as little or as much direct help as you’d like.
Care of Adults
When someone is unable to make personal, health care, or financial decisions for themselves, a family member or a friend can ask the court to appoint him or her guardian or conservator for the impaired person. Once declared incapacitated, they are known as a protectee.
Conservators only have charge of a person’s finances and property. A guardian is appointed to make all non-financial decisions like placement and healthcare. It is possible for someone to serve as both guardian and conservator.
A conservator is not free to make financial decisions for the person on their own, but act in very close consultation with an attorney and the probate court that oversees the matter. Every year they must provide a complete accounting of how the person’s money was spent, where it was spent, how it was invested, what interest was earned, and other various procedures to be certain that the conservator is doing the best job that they can to oversee the finances of the incapacitated person.
Care of Minors
Probate for minors is similar to that of adults in that the probate court accounts for their physical and monetarily well-being, and each uses conservators to handle finances and property, and guardians for non-financial decisions.
If a child under the age of 18 inherits money or personal property not in a trust, has received an award of damages in a personal injury lawsuit, or is named beneficiary of life insurance or retirement benefits, a conservator, accountable to the probate court, is required to act on their behalf.
A guardian is appointed to take care of a minor’s personal needs. This could be deciding where they live or go to school, or if they need medical care. If a child is without parents, the probate court, in conjunction with the family court, must appoint a guardian to replace them. This may or may not be the same person as their conservator.
Ultimately, people are surprised to learn that probate is not nearly so difficult, time consuming, or expensive as they had believed.
A good place to begin is to call Danna McKitrick.
We are happy to offer an introductory meeting, at no charge, to help clarify your specific legal and fiduciary roles and responsibilities in looking after someone’s personal interests in any of the above situations.