Frequently Asked Questions about Estate Planning & Probate
What is probate?
Probate is the process of distributing the assets of an estate. When a loved one dies, the Court will appoint an Administrator or Executor (depending on whether a Last Will and Testament was executed) who will then work to identify the heirs, the assets, and the debts of the decedent.
How does the probate process work?
The probate process involves the appointment of an Administrator or Executor, alerting heirs and creditors, gathering assets and debts, and final distribution of the estate.
Does everything a person owned have to go through probate when they die?
No. Any property owned jointly with the deceased or containing a beneficiary will pass outside of probate.
Who is responsible for handling probate?
The Executor or appointed Administrator are responsible for handling the probate process. Having an experienced attorney is beneficial to help manage deadlines and Court filings.
Should I plan to avoid probate?
Probate is the public process of distributing the personal assets of a deceased individual. It often takes longer and costs more money than estates that are able to avoid probate.
What is a will?
A Will, also known as a Last Will and Testament (LWT) is a legal document that explains how a person desires their estate to be administered. It is a blueprint of sorts that identifies who should make decisions pertaining to the estate, who the heirs are, and any specific instructions to be considered. This document is the determining factor for having an Executor (chosen by the Decedent) or an Administrator (chosen by the Court) appointed.
Who should have a will?
You (and anyone else who does not want the State to determine the distribution of their estate).
What happens if I die without a will?
If you were to die without a Will, your estate is considered “Intestate”. Your family would have to petition the Court for appointment as Administrator of the estate and then would have to make decisions based on what they believe you would have wanted. We can help.
Who should draft my will?
Ideally, an attorney should draft your will.
What are the requirements for making a will?
For a Will to be a legally binding document, ratified by the Court, it must record the uncoerced wishes of the decedent. It must have original signatures, including notary and witnesses.
Can I appoint a guardian for my children in my will?
Yes. Although a trust may be something to consider, a Will is a legal document that can be used to specify who you wish to be guardian of your minor children.
Can I distribute my property any way I wish?
A Will or a Trust (whether revocable or irrevocable) can be used to define how you desire to allocate your property, but that is only after financial responsibilities have been satisfied.
Is joint tenancy a will substitute?
No. Joint tenancy is a situation where the Deed on a property is in the name of both tenants with rights of survivorship. It would only address the subject property and does not deal with any other assets or accounts the decedent may have.
When is the will read to the family?
The Will is the legal document that provides the blueprint for the disbursement of the estate assets. It will be read to the family when the Executor makes arrangements, usually after a period of grieving.
Can I change my will?
Yes. You can revise your will as many times as necessary to meet your growing or changing needs.
Can I change someone else’s will?
No. A Will is a personal document, unique to the individual.
How do I contest a will?
Contesting a will is basically the process of filing a law suit. In order to do so, you must be an heir or an entity that stands to benefit from the Will; you must file in a timely manner; and you must have grounds for contesting the Will.
What is a personal representative?
A personal representative is the person appointed by the Will (Executor) or by the Court (Administrator) to make decisions regarding the disbursement of your estate.
What are the Executor’s responsibilities?
The personal representative (Executor or Administrator) is primarily responsible for gathering the assets and debts of the estate, paying legitimate claims and then disbursing the remainder of the assets to the heirs.
Should I tell someone I names them as my Executor?
Yes. Notifying your intended Executor has many benefits. The Executor can ask questions pertaining to your wishes and use this time to better understand the role and responsibility of an Executor.
What do I do if I want to be cremated?
Outline your interment wishes in your Last Will and Testament. Noting your desire to be cremated can also be mentioned in your Living Will, the document that facilitates your end-of-life care. It is always a good idea to discuss your wishes with your immediate family members as well.
What should I think about when selecting an Executor?
Although a good candidate for Executor should be someone who is available, organized, impartial and financially capable, the most important quality would be trustworthy. A good Executor knows you, cares about you and your wishes, and should be aware of and willing to follow your Last Will and Testament.
Can I disinherit someone?
Yes. Your estate planning documents are personal and should reflect your personal wishes.
Can I name more than one person to be the personal representative for my estate?
Yes. You may appoint more than one personal representative, but it is not advisable. Emotions run high with a death in the family and it is always better to have one person consult others, but ultimately responsible for the decisions. A more efficient option is to name a primary representative and an alternate representative should the primary be unwilling or unable to serve in such a capacity.
Does the personal representative have to live near me?
No. It is easier to make decision when close by, but a personal representative is not required to be nearby. This is just one situation where the attorneys at Ament Law Group can apply their expertise to your benefit by assisting locally when your personal representative is not local.
Why does an estate have to go through probate?
“Small estates” are eligible to avoid probate. In the state of Pennsylvania, an estate meets this qualification if its assets are $50,000 or less. Assets that were owned solely or as “tenants in common” with the deceased will need to go through the probate process. Additionally, any retirement accounts that did not have a beneficiary appointed would need to be probated as well. With some pre-planning and careful attention to detail, probate can sometimes be avoided.
Do you have a question that we didn’t answer? Contact us and send your question.