If you are in the process of putting together a will, or even just entering the planning stages, you’re probably wondering about probate law and the process by which it is enforced. Of course, no one likes to dwell on mortality or possible future illness, but when it comes to ensuring one’s assets are properly divided and cared for it is a good idea to be informed of your options. Probate courts, sometimes called surrogate courts, are the legal bodies that make sure a person’s will is carried out according to their wishes and deal with other areas of probate law such as granting power of attorney or the creation of a living will.
How do cases end up in probate court?
You probably already know that an executor is the person responsible for ensuring a will is carried out. The person who makes the will names their executor at the time it is written, and it falls to that person to distribute assets and otherwise perform any estate-related duties listed in the will.
If, for example, the deceased person’s relatives and friends named in the will claim that the executor is not performing his or her duties or is withholding assets, they can bring the case before a probate court. Beneficiaries, the people who stand to benefit from the will, can then ask the court to determine how the assets should be distributed.
A probate court will also make decisions about dividing property in cases of intestacy. Intestacy means that the deceased person’s assets after taxes and funeral expenses exceed what was mentioned in the will, or that a will was never made in the first place. When this happens, the probate court follows the common law of descent as it applies to a particular state.
This can vary depending on the jurisdiction, but usually the property would go first to the spouse, then to children, then to surviving parents or other relatives. This is why it is very important to have a will in place, especially if you plan to designate that some assets should go to charity or make other specific plans.
What does it mean if a case goes to probate court?
Some states require waiting periods of 30-90 days to bring a case to probate court. In addition, the court and attorneys charge fees that generally come out of the estate. For this reason, most people with to avoid probate court if at all possible. The process, however, is sometimes necessary to determine whether a will is valid and ensure that it is properly executed. Some states even require probate, so make sure you know your local laws.
Creating a will that is clear and specific will save a lot of time and ensure that your wishes are carried out to the letter. To answer any questions you may have about the probate process, contact the offices of your local Queens probate lawyer Richard Cary Spivack. Knowledge and planning can help protect your assets and your loved ones in the future.