The probate lawyer’s duty, in this case, is to analyze the will and determine whether or not it was signed or written under duress or under undue influence. This can sometimes be the case for some elderly people living with dementia, who may be influenced unduly by individuals who want to benefit from their will and life insurance proceeds.
Full Answer
Probate administration involves filing various forms, reporting on assets and expenditures, attending hearings, providing notice to interested parties, and allowing creditors a forum to bring claims. Assets properly transferred into a living trust will not require probate administration and will thus avoid the paperwork, hearings and other steps.
Individuals with complex estate planning needs should consider hiring an attorney to prepare their living trust. You may consider hiring an living trust lawyer if you’ve a complex estate plan. For example if your plan includes:
A probate court can appoint a guardian for an incapacitated adult. This is defined as someone who is unable to receive or interpret information to form or communicate decisions that affect the person’s physical health or safety.
The trust remains up and running after the death of its grantor, and it can transfer its property to anyone the grantor has provided for in the trust's formation documents, according to the grantor's own terms. There's no need for court oversight or involvement. 1 
Probate is necessary whenever a deceased person leaves titled assets in their name alone. A party then files a petition for probate which allows distribution of the decedent's assets. Guardianships are filed for both minors and incapacitated persons.
While a guardian of the estate manages the child's property, a trustee manages the child's trust assets.
While ZipRecruiter is seeing salaries as high as $100,707 and as low as $22,888, the majority of salaries within the Guardianship jobs category currently range between $29,546 (25th percentile) to $56,179 (75th percentile) with top earners (90th percentile) making $82,812 annually in Florida.
A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. After adjudication, the subject of the guardianship is termed a "ward."
A guardian of a trust is an office created by the trust deed upon which various powers are conferred: such as the power to appoint or remove a trustee, the power to consent to any trust distributions, or even the power to approve or direct the investment policy of the trust.
One of the most common ways to avoid probate is to create a living trust. Through a living trust, the person writing the trust (grantor) must "fund the trust" by putting the assets they choose into it.
However, a guardian may be held liable if they have failed in taking reasonable steps to assure that the protected person receives proper care and services, or the guardian has improperly managed the protected person's property or finances.
When a child is not able to safety remain at home with their parents, or adopted, permanent guardianship with a family or like-family member who is willing and able to provide care for the child, is the next best alternative. Permanent guardianship allows the child to live with people they already know and trust.
Guardianship Fees & CostsFiling TypeCostGuardianship of Person Only$235Guardianship of Person/Property Ancillary$400Guardianship of Property Only$400Miscellaneous One Document Filing$2319 more rows
The Process In order to establish a guardianship, someone must file a petition with the local court where the alleged ward resides. This process is completed by hiring a local attorney to draft the petition. Once the petition is filed, the court will appoint an attorney to represent the alleged incapacitated person.
Obtaining the guardianship of an adult is not a long drawn out process as one might think. If everything goes smoothly and it is not contested by anyone, a guardian is generally appointed in roughly 30 days.
A person seeking guardianship can file three documents:Petition to Determine Incapacity: Establishes that the ward needs a guardian;Petition for Appointment of Guardian: Asks the court to appoint a guardian;Application for Appointment as Guardian: Asks the court to appoint you as the guardian.
In general, when a person dies the function of the probate court is to ensure the following: If there was a Will, it is the decedent’s true last Will, and not a forged or revoked version. The decedent’s assets are safeguarded and protected from waste, theft, or neglect.
Probate administration involves filing various forms, reporting on assets and expenditures, attending hearings, providing notice to interested parties, and allowing creditors a forum to bring claims. Assets properly transferred into a living trust will not require probate administration and will thus avoid the paperwork, hearings and other steps. The trustee or successor trustee will simply distribute the assets according to the terms of the living trust.
(1) The family was dysfunctional to begin with and now that mom and dad have both died, the beneficiaries’ (usually children) true nature is revealed. They argue over who gets what and how mom or dad always favored so and so.
The process is not a long one . A formal probate estate process will take a minimum of 5 months start to finish, but a full year is more typical. During most of that time period, little work is being done–usually the executor is waiting for the 150 day claims period to end or is waiting until the last moment to file the death tax returns (why pay the government sooner than you have to!).
There are many types of trusts that accomplish various estate planning objectives, from reducing estate tax exposure to avoiding probate administration.
The trustee or successor trustee will simply distribute the assets according to the terms of the living trust. Note: Although assets in a living trust do not need to go through probate administration, those assets must still be reported on the Connecticut estate tax return, regardless if estate tax is actually due.
If no estate tax is due, the Connecticut estate tax return is filed with the local probate court and the court assesses a fee based on the total amount reported on the return – including the value of the living trust. Using a living trust does not avoid probate fees.
Probate guardianship may also be granted to an individual or agency to manage a minor’s property. When guardianship involves only custody, the court awards guardianship of the person. When guardianship includes property management, the court awards guardianship of the estate.
Generally, guardianships awarded in family court involve appointing a caregiver for a minor to make decisions that affect the child’s education, medical status or financial affairs. Guardianships granted by a probate court may also address the guardianship of a child, the child’s property or both.
In some jurisdictions, guardianships of minor children are handled by a probate court instead of a family court, even when one or both parents are still living. In California, for instance, the custody of a child under the age of 18 is granted to an adult relative or other non-parent adult by a probate court.
Probate court handle s issues relating to estate administration and the distribution of assets after death. Under Article V of the Uniform Probate Code, a probate court can also appoint guardians of minors and incapacitated persons. Family courts, which are governed by state and local laws, deal with matters relating to family law.
Family Court Guardianships. In many jurisdictions, such as New York, a petition for the guardianship of a minor is heard in family court. Guardianship may be temporary or given “standby” status, meaning guardianship takes effect at a future date in the event the natural parent or parents become unable to care for the child.
Family courts, which are governed by state and local laws, deal with matters relating to family law. In certain jurisdictions, this court also has authority to appoint guardianships. There are, however, minor differences in probate and family court guardianships.
A probate court can appoint a guardian for an incapacitated adult. This is defined as someone who is unable to receive or interpret information to form or communicate decisions that affect the person’s physical health or safety.
Just about the only reason to go to the trouble and expense of a living probate proceeding is a serious concern over a potential challenge to your will after your death. Will contests are rare, but if one is successful it could overturn your estate plan. And even an unsuccessful challenge will cost the estate time and money, not to mention the family strife that's involved.
The Living Probate Proceeding. If you want a court to validate your will during your lifetime, you must file a request (petition) with the local probate court. The court will schedule a hearing on the issue. You'll need to notify certain people about the hearing so they'll have a chance to show up and be heard if they wish.
Just a few states—Alaska, Arkansas, North Dakota, and Ohio— currently offer a living probate proceeding, where you can prove your will's validity while you are still alive. The process is also called "ante-mortem" probate (that's "before death" in Latin). There's a similar process that lets a court rule on the validity of a trust.
The will's execution. You'll need to show that the will was executed properly—that is, that you signed it with all the formalities required by your state's law. Two witnesses must have watched you declare that the document was your will and you signed it of your own free will, watched you sign, and signed the will themselves.
You are free to revoke a will that has been validated by the probate court, without any court involvement. But it's a good idea to go to court and remove the validated will that's on file there, to remove the possibility of confusion later about which will you intended to take effect at your death.
You are not required to provide consent as a condition of service. Attorneys have the option, but are not required, to send text messages to you. You will receive up to 2 messages per week from Martindale-Nolo. Frequency from attorney may vary.
The specifics vary from state to state, but you'll probably need to send a notice to your spouse, children, and any other people who would inherit from you if you died without a will. (People entitled to inherit from you under state law, if you don't leave a will, are called your legal heirs.)
The trustee will administer the trust in accordance with its terms. Most often you, if you so choose, will be the trustee, although you can name a spouse, child or bank as a Co-Trustee. A living trust is revocable trust, meaning that you can end it or change it at any time.
Then upon the death of the step parent, only their children are left any assets. One of the most common uses of a living trust or perhaps an irrevocable trust is to properly provide for the needs of the new spouse during their lifetime but to insure that your biological children also receive their share of your estate.
The trustee will administer the trust in accordance with its terms. Most often you, if you so choose, will be the trustee, although you can name a spouse, child or bank as a Co-Trustee. A living trust is revocable trust, meaning that you can end it or change it at any time. You, as the creator of the trust, reserve the right to amend it and alter the trust however you please and you can obtain access to all the assets at any time for any reason. Because you control everything in your trust, the trust does not protect assets from any creditor or nursing home.
When you must provide an accounting may be in the trust document. By state law, you must account periodically, at least annually. At minimum your account should reflect in detail all item s of cash receipts and disbursements, proceeds from the sale of assets and distributions to beneficiaries. It should show opening and closing cash balances and must contain a list of the trust assets at the beginning and at the close of the accounting period. Be sure to list all assets received, held and disposed of, and all receipts and disbursements, giving the date, amount and explanation of each.
Trusts have many uses from preserving a child's inheritance to providing for a disabled person in a special needs trust. As the trustee, your authority comes first from the trust document. Your duties and powers as described there are your basic instructions.
Placing your business in your living trust assures that the business, including any real estate owned by the business, is not tied up by the probate process which normally takes up to a year. The same is true for out of state property. A separate probate, called an ancillary probate, will be required in the other state.
A living trust (revocable trust) is a written document that you create with the assistance of your South Carolina estate lawyer during your lifetime. You may choose to fund it during your lifetime, or leave it unfunded until your death. By "fund it," that means that you actually make it the legal owner of your assets.
Why would you want to avoid or simplify the probate process? In short, because probate can be an utter nightmare for your loved ones. It’s often time-consuming, expensive and very stressful for those left to navigate it.
Probate can take anywhere from a few months to several years to fully complete. For most estates of average size, the process will range from six months to two years. If an estate is especially large, if any heirs contest anything, or if beneficiaries cannot be found, things will take longer.
Executors can charge a fee to be reimbursed for most expenses they incur. This can include the cost for any travel needed, to pay for tax prep, to buy any supplies, or for anything else required to settle an estate. Executors can also be reimbursed a fair fee for the job they do as a representative of an estate.
Perhaps one of the biggest drawbacks to probate is the cost . And the more it costs, the less inheritance your beneficiaries will receive. Total cost can widely vary, depending on a number of factors including: But there are some things you can count on being fairly consistent in the probate process.
Create a Trust - Trusts avoid probate, making the process of settling an estate simpler, cheaper, and for some people, most importantly, more private. Trusts are not public at all, whereas probate is a public proceeding. If you’re concerned about privacy, creating a Trust can kill the proverbial two birds with one stone by allowing your estate to avoid probate fees and keep things private.
These official certificates have the court’s seal and authorize an Administrator or Executor to act on the deceased estate owner’s behalf. You’ll need this for several institutions like the DMV, banks, insurance companies, etc. * Certificates can range anywhere from $5 - $20 per certified copy; you may need originals for certain institutions, while others might accept a photocopy; you can order extra certified copies from the court if you need more than they give you.
Update Your Beneficiaries & Include Contingent Beneficiaries - It’s always a good idea to audit your accounts every few years to ensure beneficiaries haven’t changed. You might want to update beneficiaries due to a marriage, death, birth or any other major life event. Ensuring your beneficiaries are correct, and naming contingent beneficiaries (back ups) in case your first choice is unable or unwilling to accept an inheritance is just smart. It offers double protection that your estate will be distributed in a timely manner.
A living trust holds assets that are managed by a trustee for intended beneficiaries. Also called a revocable trust, it differs from other trusts in that the trust creator, or grantor, can also serve as the trustee and can make changes to, or even revoke, the trust in its entirety during his lifetime. Living trusts are attractive ...
Living trusts are attractive because the grantor retains ultimate control over his assets while he is alive, but they are most commonly used to avoid probate.
Trust funding is imperative because assets not titled to the trust may have to go through probate. Read More: How to Terminate a Living Trust.
Either intentionally or unintentionally, a grantor may leave assets out of the trust. A pour-over will is often used in conjunction with a living trust, so that any assets left out of the trust “pour over” from the probate estate into the trust.
Assets held in a trust avoid probate because the trust itself doesn't die with its creator—called the grantor or trustmaker in legal terms. The trust remains up and running after the death of its grantor, and it can transfer its property to anyone the grantor has provided for in the trust's formation documents, according to the grantor's own terms. There's no need for court oversight or involvement. 1 
These statutes are usually one to five years, but they're sometimes even longer. 16 
2  It can be a particularly important consideration if you own real estate in more than one state because your loved ones would face with two or more probate proceedings in this case if you just leave a will.
Opening a probate estate can take several weeks.
You must create new deeds and other documents to transfer ownership of your assets into the trust after you form it. You'll have to contact your bank, investment and insurance companies, and transfer agents. You'll have to change account and stock ownership and update beneficiaries. New stock certificates must be issued. Cars and boats must be retitled. 11 
It's important to speak with a legal professional when you're tackling something as important as estate planning. You'll want to be completely sure that you understand all the pros and cons of your decisions. This article is intended to convey general information and might not apply directly to your unique concerns.
You'll need a special type of will called a pour-over will to "catch" your unfunded assets in this case. The will "pours" them into your trust at the time of your death, as the name suggests. Your pour-over will must be probated, but it can still be an invaluable worst-case-scenario backup tool. 12 
After your death, the trust distributes the assets to your beneficiaries. A living trust is created with a trust document or instrument. You may be able to create this yourself, but it makes sense to work with an attorney to create your trust in some situations.
A living trust document must contain the following items to be valid: 1 Your name as the grantor of the trust 2 The name of the trustee who will manage the trust 3 The name of the successor trustee who will manage the trust should the trustee die 4 The names of your beneficiaries 5 How the assets are to be distributed to the beneficiaries
For example, a condition could be that your grandchildren must graduate from college to receive their inheritance or that your beneficiaries will inherit portions of the trust at specific ages.
A living trust document must contain the following items to be valid: The name of the successor trustee who will manage the trust should the trustee die. A trust document doesn't need to be filed with the state.
The federal estate tax exemption is currently set at $11.18 million. If your estate is larger than that amount, you'll owe estate taxes. Many states have estate taxes as well, so be sure to check your own state's laws so you know if you'll owe the state.
A handwritten trust document may be valid if it's properly signed and executed, but a typed document will be clear and easy to read and is always best. Keep it simple. The more basic your trust, the better. Don't include anything beyond the basic information required by the state. Transfer ownership.
You need help transferring assets. If you aren't sure how to legally transfer your assets into the trust, a will and trust attorney can help you do it correctly so that your trust can go into effect. A living trust is an excellent way to manage your assets during your life and ensure they are distributed to your beneficiaries after your death ...