To smoothen the Probate process, it is advisable to create an estate planning strategy that helps your family gain access to assets after your die. A personal representative is an attorney acting in the best interest of a decedent during probate. Furthermore, he/she is responsible for employing the use of clauses from the UTMA and UPC during the Probate process. It is the job of the attorney to make sure there is a mutual understanding between the client and the attorney regarding the estate plan and the Probate procedures.
When estate planning is not in tandem with the probate laws, various complications arise. This occurs in the form of enactment of Intestacy laws, property getting seized, etc. The existence of a Will can be justified if there is someone who you can bequeath your wealth to. E.g., living spouse, children, a charity, etc. In the event that a decedent leaves money for his family, he/she should recognize and find solutions to reduce the liquidated liabilities of his/her estate. One should identify all the potential errors they might run into while drafting a Will.
Existence of Older Wills: Potential Errors and Solutions in Estate Planning
The problems older Wills can cause manifest in three ways:
- A decedent’s multiple original wills are found, creating a conflict of interest.
- The testator’s deposited will at the domicile county courthouse will create confusion when a new will is executed without revoking the one at the courthouse.
- The opposing party in a will can ‘miraculously’ chance up an older will, increasing the duration of the dispute process.
Additionally, by having multiple older Wills, the chances your family will dispute over the bequeathed property and assets increase.
Lengthy Testamentary Wills
Wills spanning across 8 – 12 pages distract the client from executing the Will. When a client reads 12 pages to understand the crux of the document, it distracts him/her from injecting their true intentions into the Will.
Note: Keep in mind to never overwhelm the client and create multiple lines of defense against inconsistencies appearing in documents. Additionally, keep clients in the loop by helping them create Wills not exhaustive in content.
Next of Kin; Heirs to the Property
The concept of ‘Next of Kin’ plays a significant role in the equitable distribution of assets after a Will-Maker’s death. The question which normally plagues the mind of the client is: their Next of Kin never took responsibility and rarely cared for them, why should they inherit their wealth? By explaining procuring jurisdiction over necessary parties, an attorney describes the importance of the family tree to the testator.
Additionally, the attorney should always create a Scrivener’s Error Affidavit in case errors are found. These errors can be in the form of a wrong address, incorrect spellings of designations, not mentioning an executor, etc. If the addresses of beneficiaries and legatees (such as the immediate family) are wrong, then the court will have to take extra steps to locate the correct beneficiaries.
Probate Process: Financial Aspects and How to Avoid Probate Through Estate Planning
General bequests will be distributed as token bequests and are an expression of appreciation to the recipient. Regarding small bequests, survivorship clauses are pertinent to insert into a Will. Furthermore, survivorship clauses ensures that the wealth of the decedent is used in a justifiable manner by adult beneficiaries. Give the total number of executors and be concise when explaining who qualifies as an executor in the will.
TOD and ITF accounts ensure beneficiaries are linked with accounts which hold their respective nominal gifts. Its functions are contingent on the death of the decedent who created the TOD and ITF accounts for his/her beneficiaries. Thus, an attorney should consider using the Operation of Law Transfers for Small Bequest if their client wants to avoid the typical Probate process.
The following section is a list of suggestions for leaving money to unidentified or yet-to-identify parties:
- Inform clients what the state notice requirements for Probate are.
- Inter vivos trust for foreign distributees / legal beneficiaries.
- Attorneys explaining the differences between Probate Assets and Testamentary substitutes.
Final Thoughts About Estate Planning
The probate process will be smoothened if an attorney is present at the time of the drafting of a Will. A client should appoint a Bailee of the Will who will make certain that the testator’s will is executed properly. He/she must also expressly identify all parties involved in the Will. Handling a Will alone can be overwhelming for a client, having an attorney cuts the hassle of creating a Will or finding alternatives to typical Probate procedures and estate planning.
