Monday, November 23, 2009

Today's Probate Answers

What happens to the real estate located in another state?

A probate must be instituted not only in the state where you lived, but in every state where you owned real estate. This is called an ancillary probate. Each state has probate jurisdiction of the real property located within its borders. That means that your family will have to file a new probate in each state and hire local counsel to represent the estate. Of course, this will add to the expenses that must be paid before your family receives its share.

Are there any other problems with a Death Probate?

Yes. Perhaps the most important disadvantage of death probate is that your family loses control of the estate. During probate, it may not be able to sell assets without court approval even if it needs the money. Opportunities can be lost because the cumbersome probate system moves so slowly.

Your family may pay an emotional price in probate as well. Because the process takes so long, it can be a constant reminder of the loss of a loved one. It can also foster arguments among family members who would normally seek support from one another. It’s common to see family members taking out their frustration about the system on one another, especially if one of the family members has been named the personal representative of the estate.

Friday, November 20, 2009

Living Probate

For most of our lives the greatest risk to our well-being isn’t death. It’s the ever-growing likelihood of becoming seriously ill or injured.

As Carolyn Henderson anxiously watched her husband’s flickering vital signs on the Intensive Care Unit monitor, she considered the irony of their circumstances. When she and Kirk planned how they might spend their thirtieth wedding anniversary, this sickbed vigil was the farthest thing from their minds. But then on the very day they planned to celebrate 30 years of marriage, Kirk Henderson, a robust, health-conscious, ex-pro football player in his mid-fifties, unexpectedly suffered a stroke. As the hours ticked by with no sign that Kirk would regain consciousness, Carolyn considered for the first time that he might not pull through.

Although Kirk didn’t die, he hasn’t fully recovered either. Today, two years after his stroke, the aftermath of his illness has rendered him barely able to walk or use his right arm. His speech is slurred, his thinking processes are still muddled, and he will probably need physical therapy for the rest of his life. Carolyn tries not to dwell on the remnants of her husband’s illness, emphasizing instead on the miraculous progress he has made in so many areas. But just when she starts to think things are returning to normal, she’s reminded that in the eyes of the law, her husband is as good as dead.

Declared mentally incompetent in a court of law, Kirk Henderson no longer has the right to make any decisions for himself. He can’t sign a check, conduct a financial transaction, or even decide how he wishes
to be cared for.

When they least expected it, the Hendersons discovered what insurance companies have been trying to tell us for years. For most of our lives, the greatest risk to our well-being isn’t death. It’s the ever-growing likelihood of becoming seriously ill or injured. And when illness or injury make us unable to manage our affairs for ourselves, we may face an ordeal nearly as debilitating as our disability itself. It’s a legal process commonly called Living Probate.
For more information on Living Probate, visit our website:

Monday, November 16, 2009

Today's Probate Answers

How are probate fees calculated?

The way probate fees are calculated is exceedingly unfair to your family. State law sets the probate fees that attorneys and personal representatives can charge. Many states allow attorneys to charge any fee that the court considers reasonable, without any limitations. Other states limit the fees to a fixed percentage of the estate. Under either method, the fees can be very expensive.

Probate fees are often levied at each spouse’s death. Depending on how title was held on the date of death, a married couple could pay some form of probate fees on the death of each spouse.

Not only are these fees excessive, but the manner in which they arrive at the size of your estate bears little resemblance to its actual value. In states that use the percentage of the estate method, probate fees are calculated on your estate’s gross value without deductions for liens or encumbrances. This means that if you have property worth $100,000 but owe $90,000 to a bank or some other financial institution, your probate fees will be based on the full $100,000, not the $10,000 equity interest you actually own. As you can see, this valuation method unfairly increases the size of your estate and results in the payment of larger fees.

How much does Probate cost?

Despite what probate lawyers say, probate can be very expensive. A recent national survey revealed that the average cost is between two and three percent of the gross value of the estate. A full sixty percent of the cost goes to lawyers and forty percent to personal representatives and others. One legal scholar who urges a reform in the probate system remarked that “the cost of probate expands to consume the money available.” Small estates are particularly vulnerable because even reasonable fees can eat up a large percentage of an estate’s assets. There just isn’t that much to go around. Remember, every dollar that goes to pay probate costs is a dollar that could benefit your family.

How long does Probate take?

The slow progress of your estate through probate can be very frustrating for the family. Although this complex process usually takes at least one and a half years to complete, many estates take years. Most people assume that their estates are simple and will glide through the system. Regardless of how simple an estate appears, it’s very difficult to close a full probate in less than a year. That’s because of all the steps that must be completed to the satisfaction of the court.

Are the details of the estate kept private in Probate court?

No. All probate proceedings are open to the public. Anyone who has an interest can pull your probate file and examine every detail of your financial life. The file will disclose an inventory and appraisal of every asset you owned at death. It reveals the name of all your creditors and amount owed to each. It lays out the names of all your beneficiaries and the amount and conditions of their inheritances. This information is often compiled and sold to those who use the information to sell products and services to vulnerable surviving family members. It can be particularly damaging if you owned a business. Your competitors will have a treasure trove of confidential business information at their fingertips in the probate file.

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Wednesday, November 11, 2009

Congratulations to Estate Planning Attorney Michael D. Bonfrisco!

Michael D. Bonfrisco, Esq. was named Top Attorney in the November Issue of SJ Magazine.


Today's Probate Answers

What is Death Probate?

When you think about it, probate is not difficult to understand. At your death, your assets need to be distributed to your heirs, your debts need to be paid and any loose ends need to be looked after. You, obviously, can’t sign the deeds, write the checks or handle your business affairs. The probate court takes over those duties. The probate process is a long complicated and bureaucratic nightmare for most families. Here are the five basic steps to settling an estate:

Step One: Filing Petition and Gathering Material

A formal written petition to the court along with a filing fee must be submitted to the court to start the probate process. One of the probate court’s first jobs is to approve or appoint someone to handle the affairs of the estate. This person is called the executor, administrator or personal representative depending upon the rules of the state and whether the decedent died with or without a will. To keep things simple, we’ll call this agent of the estate a “personal representative.” Generally, the first thing the personal representative does is hire an experienced probate attorney. Although having an attorney is not always a legal requirement, it has become a practical necessity because probate paperwork and filing procedures can be very complex.

Step Two: Publishing Notice to Creditors

The second major job of the probate court is to order that the decedent’s creditors be notified so that they can present their claims to the court for payment. This requires the time consuming task of cataloguing all of the decedent’s liabilities. The creditors are notified either by notices in the local newspaper or directly by mail. The law sets a time that the probate proceeding must be left open to allow creditors the chance to present their claims. In most states, the creditor period is several months long.

Step Three: Inventory and Appraise Assets

During probate all the assets in the estate are usually frozen so that an accurate inventory and appraisal can be made. This means that during this period none of the assets can be distributed or sold without written permission from the court. The court will often require formal written appraisals for many items, such as real estate, antiques, collectibles, automobiles, furniture and other valuable assets. Appraisal fees can be expensive and, like all expenses, are paid for out of the estate.

Step Four: Payment of Debts, Claims and Taxes

Once all the debts and claims have been submitted and approved, they’re presented to the court for approval to pay them from the assets of the estate. Some estates may also have death tax liability and they must stay open until those taxes are paid.

During the entire probate process, disgruntled heirs or those who disagree with the provisions in the will can bring a lawsuit in the probate court. These suits are called will contests. They can hold up the distribution of the estate and are often used to intimidate heirs into settling cases that have no merit.

Step Five: Final Distribution and Closing of Estate

Finally, after the court is satisfied that all legal requirements have been met, it will order all debts, claims, taxes, attorney’s fees and the personal representative’s compensation and any other miscellaneous expenses to be paid. If there’s not enough cash in the estate to pay these substantial claims, the judge can order that assets be sold at public auctions or estate sales. These transactions are often conducted in a depressed market or under the banner of “distressed sales.” Only after all the bills are paid will the probate court distribute the estate to the beneficiaries named in the will; or if there is no will, to the designated heirs at law. The court then closes the file.

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Wednesday, November 4, 2009

Today's NJ Probate Answers

What is a Living Probate?

When you mention the word “probate,” most people think it’s only something that happens when you die. Unfortunately, probate can also happen while you’re alive. It’s often referred to as a “living probate” but it’s technically called a “conservatorship” or “guardianship proceeding.” If you become mentally disabled before you die, the probate court will appoint someone to take control of all your assets and personal affairs. These court appointed agents must file strict annual accountings with the court. The entire procedure is expensive, time-consuming and humiliating.

Does Joint Tenancy avoid a Living Probate?
No. Each joint tenant is required to sign documents on all major transactions involving joint property. If one of the owners is mentally disabled and incapable of handling financial matters, everything will have to wait until the probate court takes control. The court, in effect, becomes a joint owner and will continue to have a voice in managing the property until the disabled owner recovers or dies.

Does a Will avoid a Living Probate?
No. A will only takes effect at the time of your death. It has no control over events during your life.

Does a Living Trust avoid a Living Probate?
Yes. One of the most important benefits of a living trust is that it is designed to protect you while you’re alive. Part of every well drafted living trust is a section setting forth your instructions in the event you should become legally incapacitated. You can plan in advance to look after illness, disability, and even old age. The trustees you pick are bound by law to follow your instructions during these difficult times. With a living trust, there will be no need for expensive “help” from the probate court, probate lawyers or conservators.

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