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Probate FAQ

October 2, 2020

What is Probate?

Probate is the process of proving a deceased person’s will in court. In general, the law requires you to submit the will to probate before you can legally distribute property belonging to the decedent. The court oversees the probate process. An experienced probate lawyer will assist you with the probate process.

What is the Difference between a Will and a Living Will?

A will, also called a last will and testament, is a document that details how your assets and possessions are to be distributed after your death. A living will goes a step further and defines how to handle your medical care if you become incapacitated. Along with a living will, you may want to designate power of attorney to a loved one who will then be allowed to take care of your financial concerns, as well.

What Happens if Someone Dies Without a Will?

If someone dies without a will, he or she is said to die intestate. When that happens, your assets will be distributed according to state intestacy laws. Typically, your assets will go to your living spouse or to your children. A will allows you to specify who will inherit your assets. You will make certain to specify beneficiaries that you prefer. Problems can arise between relatives and others when you die without a will.

What is an Estate Plan?

An estate plan is a group of legal documents that together provide for your estate when you become incapacitated or upon your death. The estate plan may include a will, a living will, a power of attorney, a durable power of attorney, and a living trust. A skilled estate planning attorney will help you determine the documents that you need in your estate plan and will prepare and execute them.

What is the Probate Process?

Probate begins when you submit a will to the court or request probate. The court appoints someone to oversee the process. Your will designates an administrator or executor to handle your will and other affairs. Generally, the probate process is not difficult or lengthy unless someone contests the will. In that case, you must resolve the dispute before you can distribute assets according to the will or laws of the state.

How can I Avoid Probate?

There are some ways that you can effectively eliminate the need for probate following your death. You can place your assets in someone else’s name, along with yours, so they already have possession of them. This is called joint ownership. Another option is to create a living trust. Finally, you may designate beneficiaries on your bank accounts, retirement accounts, and insurance policy. A reliable estate planning attorney will help you choose the best options in your particular situation.

What is a Living Trust?

A living trust is a legal arrangement that allows you to place your assets into a trust. You will designate another person to have access to the living trust along with you. Upon your death, the other person still has access to the trust. A revocable living trust allows you to make changes or modifications to the trust while you are still alive. For some people, a living trust is a good way to avoid probate.

To learn more about estate planning and probate, contact our legal team at Moen Sheehan Meyer, Ltd. online or call us at (608) 784-8310.

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