If you’re just getting started on your estate plan, you may be wondering what probate is and why there seems to be such a big fuss about avoiding it.
Probate is the court process of having a deceased person’s Will declared valid and having their property distributed according to the instructions in the Will and according to state law. Depending on the size of a person’s estate and whether or not any disputes arise during the process, probate can take anywhere from several months to several years.
While the estate of a deceased person is in probate, his or her property is generally not accessible to the heirs of his or her estate. It’s only after all the debts and taxes owed by the estate are paid off, and the court permits it, that the remaining estate property can be distributed to family members or other beneficiaries.
Because of the time and legal fees involved in the probate process, many people choose to plan their estates so that they can avoid the process. There are a number of methods for doing this, including establishing a Revocable Living Trust, owning property as Joint Tenants With Rights of Survivorship, and taking advantage of payable on death accounts.
There are some advantages to the probate process that can benefit people in certain situations. In order to be truly beneficial, your estate plan should be tailored to your specific circumstances. For guidance as to which estate planning methods are best for you, consult with an estate planning attorney.
Clients often come to us in a crisis situation when a loved one is entering a nursing home, asking what they can do to preserve their assets. This video explains what can be done at that time and why it is better to plan ahead.
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This video has been prepared by the law firm of Bacon Wilson, P.C., Springfield, Massachusetts, for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.
With the excitement of starting your family, you want to focus on your plans, hopes and dreams for the future. Estate planning is probably the furthest thing from your mind. Plus, you probably feel like you’re too poor to make an estate plan, anyway. It’s something your parents and grandparents worry about. However, it’s never too early to plan for your family’s future. Here are some tips:
Make an incapacity plan. Emergencies can happen to anyone, not just the elderly. If you’re in an accident and can’t take care of your own healthcare or financial decisions, you need to have a plan in place so that someone can step in and take care of these things for you. Otherwise, your family will have to go to court and have someone appointed to do the job – a time-consuming, expensive, and emotional hassle. There are estate planning options like a living will and an advance medical directive that you can use to deal with medical planning, and a durable power of attorney can help with financial emergencies. But these documents have to be in place in advance. Once you’re incapacitated, it’s too late to put an estate plan in place.
Put a plan in place in the event of your death. Anyone can die at any time, and untimely death is unfortunately a fact of life. You should be prepared with a Will or a Revocable Living Trust. Either of these documents will allow you to pass your assets on to the loved ones of your choosing, at the time and in the manner that you choose. If you die without an estate plan, also called dying “intestate” your assets will pass to your family members in the manner dictated by state law. This may or may not be what you want to have happen.
Be sure to name a guardian for your children. If both you and your spouse die while your children are still minors, someone will have to step in to take care of them. If you leave an estate plan naming a guardian, you’ll have the peace of mind of knowing they’ll be raised by people you’ve chosen, whom you know, trust and approve of. If you haven’t named a guardian, anyone may petition the court and, upon convincing the court they’re fit for the job, can be appointed to care for your children. Usually this is a family member, but it may not be the person you’ve chosen.
Estate planning is not just for the elderly or the wealthy, it’s for everyone. Especially if you have a growing family, it’s the responsible thing to do.
We’ve had many people contact me wondering about Eliza Presley’s case and her efforts to prove that she is the daughter of Vernon Presley and half-sister of Elvis Presley. In doing so, she’s also trying to show that Elvis is still alive and she has DNA evidence to prove it.
So it seemed appropriate to share an update about her case on August 16th, 2010 … exactly 33 years after the day that the history books mark as when Elvis died. Click here to review the first installment of my four-part discussion about Eliza’s case and why — as hard as it was for me to swallow at first – I believe she’s telling the truth and Elvis really is alive.
On August 6, 2010, Eliza’s attorney filed a Motion for Default Judgment, asking the Chauncery Court in Tennessee to enter a default judgment on her Complaint to Determine Parentage and Heirship against Lisa Marie Presley and all other surviving or unknown heirs of Vernon Presley. You can read the Motion for Default here.
Despite the fact that Lisa Marie was legally served and notice was published for all heirs one year ago, no one has come forward to respond to the lawsuit or challenge Eliza’s claims in court. You can read the Complaint that started the lawsuit here.
When Eliza initially filed suit to have Vernon Presley’s estate reopened in probate court, her efforts were opposed by an attorney who said he represented various Presley interests, but Eliza won and the estate was reopened. This is a separate lawsuit, however, and this time no one has even tried to stand against her.
It’s not unusual for an heir to be unhappy about the contents of a loved one’s Will. Being left out of a Will or receiving less than you expected is difficult to accept. However, winning a Will contest (a lawsuit challenging the validity of a Will) is no easy task.
In order to have a Will invalidated, the person challenging it has to prove one of four things:
1. That the Will wasn’t properly executed. This means that the Will, on its face, wasn’t signed and witnessed according to the requirements of state law.
2. That the person making the Will lacked legal capacity. A person can lack capacity to make a Will for a number of reasons. For instance, children can’t make Wills because, as a matter of state law, they’re presumed to be incapable of doing so.
When it comes to adults, lack of capacity means that you don’t understand or aren’t aware of:
This video explains some of the many things you need to consider before getting remarried: a prenuptial agreement, insurance concerns, social security benefits, changes to your Will, and the impact of long term care on your assets.
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This video has been prepared by the law firm of Bacon Wilson, P.C., Springfield, Massachusetts, for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. For additional information, please contact Hyman G. Darling, Esq. at 413.781.0560. You may also send him an email at
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It’s not unusual for an heir to be unhappy about the contents of a loved one’s Will. Being left out of a Will or receiving less than you expected is difficult to accept. However, winning a Will contest (a lawsuit challenging the validity of a Will) is no easy task.
