Probate & Estates

What is Probate?

Probate is the legal process of settling a dead person's estate: specifically, distributing the decedent's property.

In some states, after a person residing in that state has died, his or her property immediately becomes the property of the spouse, if any, without the need for probate. (This is the case in states that recognize a married couple's property as community property or as tenancy by the entireties.) However, in cases where the surviving spouse does not automatically succeed to the decedent's property, then it is usually necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (often called a "probate court") supervises probate, in order to ensure the decedent's property is distributed according to the direction of his will and the laws of the state.

The will usually names an executor, a person tasked with carrying out the instructions laid out in the will. The executor's most common task is the marshalling of the decedent's assets throughout the probate process. If there is no will, or if the will does not name an executor, then the probate or other court having jurisdiction of the decedent's estate can appoint one. Traditionally, the representative of an in testate estate is called an administrator. The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo).

Steps of probate

Some of the decedent's property may never enter probate because it passes to another person contractually, such as an insurance policy or bank account that names a beneficiary or is owned as "payable on death", and property (usually, again, a bank account) legally held as "jointly owned with right of survivorship". Property held in a living trust also avoids probate. In these cases, the executor provides documentation to the court, and the property is prevented from entering probate.

The first task of the executor after opening the probate case with the court is to inventory and collect the decedent's property.

Next, the executor pays any debts and taxes.

Finally, the executor distributes the remaining property to the decedent's beneficiaries, either as instructed in the will, or per the intestacy laws of the state.

Throughout this process there may be disputes. Anyone may make a claim on the estate, either by petitioning the executor or the court. If the claim is rejected, the claimant may file a civil lawsuit to attempt to prove the claim and collect money. Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve every transfer of every piece of property.

Avoiding probate

Probate generally lasts a number of months, occasionally over a year before all the property can be distributed, and may involve costs to hire attorneys, so some people attempt to avoid probate, most commonly by means of a living trust. This is technically a separate legal entity to which a person transfers ownership of his property. Upon their death, the decedent's heir/heiresses acquire control of the trust and, therefore, the property it owns. This avoids probate for the property held by the trust, may assist in avoiding some estate taxes, and maintains privacy. The probate process is public and records can be examined by anyone wishing to do so.

It must be noted that avoiding probate itself does not directly mean estate taxes have also been avoided, as the laws imposing the federal estate tax have been modified to include within the definition of the person's taxable estate, property held in a living trust, life insurance, "payable on death" financial instruments, and most other property which is transferred from a dead person to a living person in consequence of the death. Intervivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate.

Trusts and Estate.

The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such person's incapacity or death, also known as the law of successions in civil law. Its techniques are also used to fulfill the wishes of philanthropic bequests or gifts through the creation, maintenance and supervision of charitable trusts. In some jurisdictions, such as the United States, it overlaps with the area that has been come to be known as elder law that deals not only with estate planning but other issues that face the elderly, such as home care, long term care insurance or social security or disability benefits.

What is an estate?

At common law, an estate was comprised of the tangible assets of real and personal property which belong to a natural person. More recently, the concept of an estate has been expanded to encompass any thing of value to which the deceased person was or might have been entitled to claim during his or her lifetime. The property of the estate must either be bequeathed through a will or transferred through the laws of intestacy if there is no will. A will is the most commonly used legal instrument for the distribution of the tangible assets of a deceased person. Before property can be disposed of pursuant to the terms of a will, the will must be submitted to a probate court having jurisdiction of the estate of the deceased. Probate is often considered a relatively lengthy and expensive process, albeit one which may provide greater safeguards with regard to the rights of a deceased person's beneficiaries, though probate often is contested by creditors or disgruntled members of the family of the deceased who feel they have not received their fair share of the deceased's property

Uses of trusts

In order to expedite the process of transferring assets to intended beneficiaries, some people choose to arrange their property so that it can bypass the probate process upon their deaths. For example, placing property into a trust before death (as opposed to a testamentary trust) will often allow the accomplishment of the objectives of property distribution without coming under the jurisdiction of a court and the possible redistribution after a lengthy contested probate process and trial. Similarly, jointly held property (in common law systems), life insurance, annuities, US Tax Code section 401(k) Retirement Plans or Individual Retirement Accounts (also known as RRSPs in Canada) will also avoid probate as these devices allow property to transfer to beneficiaries outside the probate process.

Use of estates and trusts

Another major factor in trusts and estates law may be to minimize one's tax exposure. After an applicable exempt amount, the United States federal estate tax very quickly approaches 50% of one's taxable estate. The proper use of trusts may reduce one's tax burden. The applicable exempt amount is currently one million dollars in 2003, and is scheduled to increase each year until the estate tax is temporarily repealed for one year in 2010. The year after, the estate tax is scheduled to be reinstated, with the previous exemption of one million dollars.

Trusts may also allow people a certain limited amount of control of how the amount held by the trust is handled. For example, one could leave money for somebody who may not be mature enough to handle money, and state that the money can only be used for health, education, support and maintenance of that person until the age of 35, upon which time the remaining income and principal will be distributed. One can also distribute one's assets to charitable purposes by creating an irrevocable charitable trust that may distribute the principal or the income of the trust much in the same manner as a private foundation.

Special Needs Trusts

Special Needs Trusts are created to ensure that beneficiaries who are developmentally disabled or mentally ill can receive inheritances without losing access to essential government benefits.

What is Powers of Attorney?

A power of attorney or letter of attorney in common law systems or mandate in civil law systems is an authorization to act on someone else's behalf in a legal or business matter. The person authorizing the other to act is the "principal" or "grantor (of the power)", and the one authorized to act is the "agent" or "attorney-in-fact". The attorney-in-fact acts "in the principal's name," signing the principal's name to documents and filing suit with the principal's name as plaintiff, for example.

As one kind of agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. If the attorney-in-fact is being paid to act for the principal, the contract is a separate matter from the power of attorney itself, so if that contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people.

The power of attorney (often called "POA" for short) may be oral—such as asking someone else to sign your name on a check because your arm is broken—or may be in writing. Many institutions, such as hospitals, banks, and the I.R.S., require a power of attorney to be in writing before they will honor it, and they usually want to keep an original for their records.

The "equal dignity rule" is a principle of law that requires a document authorizing someone representing someone else to have been appointed with the same formality as required for the act the representative is going to perform, and it applies to powers of attorney. This means, for example, that if you give someone your power of attorney to sign the papers to sell your house, and the law requires that signature on the deed to be notarized, then your power of attorney authorizing that attorney in fact to sign the deed must be notarized, too.

A power of attorney may be "special" or "limited" to one specified act or type of act, or it may be "general," and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.) Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). This type of power of attorney is called a "durable power of attorney". In some jurisdictions such a durable power of attorney can also function as a "living will", which can be used to appoint someone to make health-care decisions for the grantor, up to and including "pulling the plug" on machines keeping them clinically alive. New York State has enacted a "Health Care Proxy" law that requires a separate document be prepared appointing one as your health care agent.

In some U.S. states and other jurisdictions it is possible to enact a springing power of attorney; i.e., a power that only takes effect after incapacitation of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but, unlike a durable power, cannot be invoked before the incapacity. This is often used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes him unable to act, while retaining the power for himself before the incapacity occurs.

Unless the power of attorney has been made "irrevocable" (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney in fact it is revoked; however, if the principal does not inform third parties and it is reasonable that the third parties could rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.

Many standardized forms are available (usually for free) for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. In some states statutory power of attorney forms are available as some individuals have used powers of attorney to unscrupulously waste that assets of vulnerable individuals such as the elderly (see elder abuse).

What is Estate Planning?

Estate planning is the process of accumulating and disposing of an estate to maximize the goals of the estate owner. The various goals of estate planning include making sure the greatest amount of the estate passes to the estate owner's intended beneficiaries, often including paying the least amount of taxes. Additional goals typically include providing for and designating guardians for minor children and planning for incapacity.

Estate planning tools

The tools involved in estate planning include the will, various types of trusts, powers of appointment, various forms of property ownership (Joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety, etc), gifting, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney which is also commonly known as a living will.

What is Estate tax?

Inheritance tax, also known in some countries outside the United States as a death duty and referred to as an estate tax within the U.S, is a form of tax levied upon the bequest that a person may make in their will to a living person or organisation. If a bequest is made to a charitable organisation, most countries do not apply the tax. The tax is also imposed on other transfers of property made as an incident of the death of the owner, such as a transfer of property from an intestate estate, or the payment of certain life insurance benefits.

The U.S. federal government imposes an estate tax, calculated as a percentage of the part of the estate that exceeds the current exempted value. For 2005, an estate with a value less than $1,500,000 would not pay an estate tax and most likely would not have to file an estate tax return. Many U.S. states also impose their own estate or inheritance taxes (See state estate tax).

For estates larger than the current exempted amount, any estate tax due is paid by the executor or other person responsible for administering the estate. That person is also responsible for filing a return with the Internal Revenue Service. The return must contain detailed information as to the valuations of the estate assets and the exemptions claimed, to ensure that the correct amount of tax is paid.

Life insurance benefits generally form part of the gross estate for tax purposes, if the benefits are payable to the estate, or if the decedent was the owner of the life insurance policy or had any "incidents of ownership" over the life insurance policy. Similarly, bank accounts or other financial instruments which are "payable on death" or "transfer on death" are usually included in the taxable estate, even though such assets are not subject to the probate process.

The taxable portion of an estate can be reduced through charitable contributions or provisions that allow executors of some qualifying family-owned farms to reduce the taxable value of an estate's real property by some percentage of market value (up to certain limits) if certain eligible heirs continue to actively farm the property for over a decade.

Many of its opponents refer to the estate tax as the "death tax" and have called for its abolition. Since 2002, the top rate has dropped from 50% by one percent per year; it is scheduled to drop to 45% in 2009, thence to 0% in 2010, but as of 2005, if no further changes in the law are enacted, the tax will be reimposed at a top rate of 50% in 2011. It is, however, expected that Congress will enact legislation to change this in the intervening period.

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