is the legal process of transferring property following
a person's death. You'll receive the letters of
testamentary or letters of administration that
you need in order to recover estate assets. It
also helps you transfer title on real property.
Probating customs and laws have changed over time,
the purpose of probating has remained much the
same: an individual formalizes their intentions
as to the transfer of their property at the time
of their death (typically through a Will), their
property is collected, certain debts are paid from
the estate and the property is distributed accordingly.
spouse generally has a life estate to protect
her regardless of the wishes of the Will and
intestate proceedings (No Will). Unfortunately,
children of decedents are only protected
proceedings and not when a Will does not include
them. However, you can contest a Will under several
grounds such as mistake or undue influence.
An illegitimate child (one born out of wedlock)
can inherit from his or her natural mother and
vice versa when either dies without a will. By
contrast, the illegitimate child cannot inherit
from the natural father or the father's family
members who die without a will, except upon the
occurrence of one of certain specified events,
The father consents in writing to be named as
the child's father on the child's birth certificate.
Paternity is established in a paternity suit
brought generally before the child's twentieth
The father legally adopts the child.
The father voluntarily signs a written notarized
statement of paternity acknowledging that the
child is his.
After the child's birth, the father marries the
biological mother and either signs a written
acknowledgment of paternity, consents to be named
and is named as the child's father on the birth
certificate, or is obligated under a written
voluntary promise or by court order to support
After the father's death, the probate court determines
that the father was the child's biological father.
This means that even if a father maintains ties
with his illegitimate child, that child will
not inherit from him if he dies without a will,
except under limited circumstances such as those
The stepchild does not inherit from a stepparent
who dies without a will because he or she is
not considered to be legally related to that
stepparent. This is unfortunate where the stepchild
was raised by a natural parent and/or a stepparent.
A stepchild can inherit from a stepparent who
dies without a will only if the stepparent adopted
the stepchild or if the stepchild proves in court
the existence of a written or oral agreement
to adopt which was not executed. This latter
method often is used when foster parents do not
adopt a child even though they had an agreement
with the natural parent(s) that they would adopt.
Children of the Half-Blood
Half-blood children share the same natural mother
or father, but not the same two natural parents.
A half-blood child inherits only half as much
as a whole blood child. For example, if a decedent's
only heirs are a half-blood brother or sister
and a whole blood brother or sister, the half-blood
heir takes one-third of the estate and the
whole blood heir takes two-thirds.
After-Born or After-Adopted Children
After-born or after-adopted children are children
who are born to or adopted by a person after
he or she executed a will in which such children
were not provided for or mentioned at all.
After-born or after-adopted children in this
situation inherit only under limited circumstances,
so it is best to execute a new will or an amendment
to the existing will to provide for the after-born
or after-adopted children.
WILL CONTEST LITIGATION
A Will Contest is a type of litigation that challenges
the admission of a Will to probate. Issues that are
likely to spur the contesting of a Will include:
the testator lacked mental capacity; i.e., was senile,
delusional, or of unsound mind at the time the documents
were created the testator was subjected to fraud,
coercion or undue influence during its creation and
implementation there are ambiguities in the document,
or the Will is a forgery or does not conform to legal
requirements as to the number and nature of the witnesses.
If the Will is thrown out, the court may disallow
only the part of the Will that was challenged or
throw out the entire Will of the decedent, distributing
the property as if the person died without a Will,
or use the last previous Will, depending on state
law and the specific facts and circumstances.
Trusts are estate-planning tools that can replace
or supplement Wills, as well as help manage property
during life. A trust manages the distribution of
a person's property by transferring its benefits
and obligations to different people. By maintaining
assets in a Trust, it is often easier to minimize
taxes and leave a larger inheritance. A Trust is
also a way to provide a steady income to the Beneficiary
over the course of time, rather than distribution
in a lump sum. This strategy can reduce the Beneficiary's
tax and allow the Trust to grow through investment,
and keep assets free from creditors of the Trust
beneficiary. Trusts can also be established for the
benefit of charitable organizations.
THERE IS NO WILL
If you need help with a loved one's estate when
there was no will, we can help.
Without a will:
- Your spouse
or children or other family members may share
your estate in ways undesirable to you.
- Your children will share equally regardless
- Orphaned Minors will have a guardian appointed
by the court that you could have chosen yourself
through a will.
- Friends, charities, etc., ……….get nothing.
To be sure your will is valid you can consult with
me because there are:
- Specific requirements
of language and execution for a will to be valid
Taxation minimizing issues.
- Property transfer
laws: problems can be avoided with professional
WHAT IS YOUR 'ESTATE'?
Real Estate (your home, land, etc.)
Investments (cash, mutual funds, stocks, bonds, CDs, etc.)
Business Ownership Interests
Personal Property (jewelry, art, antiques, etc.,)
Employee Benefits (pension plans, etc.)
EXECUTOR / EXECUTRIX
You can choose
who you want to manage the disbursement of your
estate which includes your Spouse, Relative,
Professional, and also Coexecutors are possibleThe executor takes control
of all your assets, pays your bills that are
owed and pays your owed taxes, collects
money owed to the estate, distributes your property. He or she should be
someone you trust who is willing and can perform
all these services.
To minimize estate and/or inheritance taxes, plan
ahead. Discuss various ways of distributing your
estate to reduce taxes. For example:
Giving Gifts over a period of years.
Setting up Trusts for children, elderly parents,
Ownership: is your property jointly owned or owned
by you alone?
Should ownership form be changed?
your will should name a GUARDIAN to take care
of children if they're orphaned.
You should provide
for a financial plan for orphaned children
Trustee: If you set up a trust, you'll have
to choose someone to manage it (for example,
your spouse, a friend, a bank trust officer
or a lawyer).
A Will Must be....
Signed by you, the testator.
Witnessed by 2 or 3 people requirement in most states. You need not disclose
contents of the will to them.