Professional Establishment of Wills, Trusts, Guardianship Documents, and More
A probate proceeding is the legal process by which a court determines the validity of a will. If there is no will the probate court will determine who the heirs are and authorize the legal transfer of title or recognize the title to the new heirs. Where there is no will be assets are distributed according to state statutes and other laws.
One of the big this problems with the probate is that it can be lengthy and expensive. It usually takes a minimum of 9 to 12 months if there are no will contest or family disputes concerning matters. If there is real estate to sell, probate can take much longer. It is not unusual for a proceeding to last two years and can go on for many years if heirs cannot be located or there are disputes about the will or distribution of assets and related matters. It can get quite expensive.
If property is located in a state other than Arkansas, there must be a probate proceeding filed in that state. This is known as an ancillary proceeding. The main probate estate is usually filed in the state where the largest amount of property of the Decedent is located. Sometimes it is based on the greater value of the estate assets.
One of the reasons that probate takes so long is there is an initial waiting period of six months after notice has been published in a newspaper or legal publication to advise creditors of the time limit to file claims against the estate and to prove the validity of their claims. Where creditor of the decedent is known that creditor must be notified as soon as possible after determination. The publication of this period is for unknown creditors.
Usually nothing, or very little can be distributed to the heirs or beneficiaries prior to the determination of creditors and liabilities of the estate so often assets are tied up during this period also there must be a determination of whether taxes are owed by the estate.
A proceeding is filed in a public court and therefore everything is known to anyone who cares to search for information. In many counties the information is online and readily visible. This cannot be avoided. One big proponent in favor of creating a trust is that it is a private document unless litigation ensues. Also, the family has no control over certain legal determinations made by the statutes and probate courts.
It is for these reasons that it is desirable to avoid probate where possible. Often that is done with the trust that can be done with other preplanning. Once a person is deceased or incapacitated, probate cannot usually be avoided.
Quite a lot of preplanning can avoid probate in the future. This may cause a little extra cost upfront to establish the trust or create plea preplanning documents such as a beneficiary steed but will usually ultimately result in less cost to the estate in the future.
Often the decision to choose a will or a trust is driven by tax considerations. At all times a tax professional should be consulted for determine which are the best options and creating an estate plan in choosing the right documents.
If your loved one’s estate is going through probate, you need an experienced attorney to help. Destiny McHughes at The Destiny Law Firm provides trusted guidance in all wills, trusts, and estate planning matters. Contact us to set an appointment for a consultation today.
Copyright © 2017 Destiny Law. All Rights Reserved. Little Rock Internet Marketing by The Clix Group