An individual’s Will names an executor who will be in charge of administering the deceased’s estate. Estate administration and probate can be confusing and time consuming at a point in time when one is least capable of dealing with new and unfamiliar processes. Assets may be tied up during the probate process, causing further stress to the family. The probate process is overseen and audited by the Clerk of Superior Court or comparable probate court depending upon the state of the deceased’s residence.
At Brinkley Walser, our probate attorneys support our clients by handling the majority of the filing and paperwork for the probate process, working through issues relating to debts of the estate, determining whether those are valid debts, and making sure the estate is properly distributed to the beneficiary or beneficiaries. We also represent individuals in cases where the validity of a family member's Last Will and Testament or other estate planning documents are in question due to possible fraud, undue influence, incapacity to make a Will or trust, or other problems relating to the estate planning documents. This is often referred to as a “caveat proceeding” when the validity of a Will is in question and is brought before the court.
With careful planning, the probate process can be minimized or eliminated. A simple example would be a checking account structured as joint account with rights of survivorship. In this case, the monies would not be tied up during (or even go through) probate, though the funds in the account would be considered an asset of the estate for tax purposes. The co-owner of the account can typically have the deceased’s name removed and become the sole account owner, or close the account and transfer the funds to his or her own account simply with the presentation of a certified copy of the death certificate. Of course, the risk of having a co-owner on the account is that the individual may withdraw funds at any time, so only trusted individuals should be added as co-owners. In some cases, an individual may set up one or more Trusts to control how their assets are handled after their death. Another method of avoiding probate is to have certain individuals named as beneficiaries on an account or to execute a “transfer on death” or “pay on death” designation at the financial institution. Such designations eliminate some of the risks of a joint account by allowing only the account owner to control and have access to the account while living, but have the account paid directly to the beneficiary or “pay on death” recipient immediately upon their death.
Having a probate attorney handle the process can ensure all steps are completed and the estate is settled with minimum disruption to the beneficiaries and family. Contact a probate attorney at Brinkley Walser today to learn more.