Demystifying Probate: Understanding the Process of Estate Administration?

Posted on by

by Attorney Curtis A. Edwards, J.D.

Probate—a legal process that can often appear complex and intimidating. In this article, we aim to provide a clear and concise explanation of the probate process, shedding light on its purpose and the steps involved. Whether you’re a personal representative, beneficiary, or simply seeking to better understand the probate process, this article will help demystify the fundamentals of estate administration.

What is Probate?

Probate is a “court-supervised” legal procedure that oversees the administration of a deceased person’s estate, including the distribution of assets and settlement of any outstanding debts. In light of the court’s jurisdiction over the probate process, it ensures that the wishes outlined in the deceased’s will (if one was created) are respected and that the estate administration is carried out in accordance with applicable laws. Probate also provides a forum to resolve any disputes that may arise during the distribution process.

Initiating the Probate Process

The probate process typically begins with the filing of a petition in the appropriate court. The court validates the will, if one exists, and appoints a personal representative consistent with the deceased’s will to administer the estate. If there is no will, the court will appoint a personal representative to oversee the distribution of assets based on the laws of intestacy (default rules for distribution when no will exists).

Inventory and Valuation of Assets

The personal representative’s first task once probate has been initiated is to create an inventory of the deceased person’s assets. This includes identifying and documenting all real estate, bank accounts, investments, personal belongings, and other assets. It’s important to assess the value of these assets accurately, often with the help of appraisers or experts, to determine their fair market value.

Notifying Creditors and Settling Debts

During the probate process, the personal representative must notify creditors of the deceased person’s passing. This provides an opportunity for creditors to make claims against the estate for any outstanding debts. The personal representative will then review and settle any valid claims using the assets of the estate. Resolving debts is a crucial step in the probate process to ensure that the remaining assets can be distributed to the beneficiaries.

Distribution of Assets

Once all debts, taxes, and expenses have been settled, the personal representative proceeds with the distribution of assets. This involves transferring ownership of assets to the beneficiaries as outlined in the will or according to the laws of intestacy. It is important to follow the proper legal procedures to ensure a smooth and lawful transfer of the assets of the estate.

 

Challenges and Timeframes

The probate process can be affected by various factors that may cause delays or complications. These may include disputes among beneficiaries, complex asset structures, or disagreements over the validity of the will. The duration of probate can also vary depending on the size and complexity of the estate.

Conclusion

Probate, though initially daunting, is a necessary legal process that ensures the proper administration and distribution of a deceased person’s estate. Understanding the basic steps involved in probate can provide clarity and help individuals navigate this process more confidently. It is advisable to seek professional legal guidance from an attorney specializing in probate law to ensure compliance with Wisconsin law and to address any unique circumstances that may arise during the probate process.

If you have any questions or are interested in learning more about this topic, please contact Lin Law LLC at (920) 393-1190.

What is an Irrevocable Life Insurance Trust?

Posted on by

By Attorney Curtis A. Edwards

Irrevocable Life Insurance Trust (ILIT) is a powerful estate planning tool that can provide several benefits to individuals and their families. An ILIT is a trust that is designed primarily to own a life insurance policy. The policy proceeds are paid to the trust upon the death of the insured, and the trust distributes the funds according to the trust document. The trust is irrevocable, meaning that once it is created, the grantor cannot change its terms or reclaim the assets transferred to the trust.

ILITs can provide significant benefits to individuals and their families. One of the primary benefits is that they can help reduce estate taxes. When an individual passes away, their assets may be subject to estate taxes if they exceed the estate tax exemption amount. Life insurance proceeds are also included in an individual’s estate, so if the policy is owned by the insured, the life insurance proceeds may be subject to estate taxes. However, if the policy is owned by an ILIT, the proceeds are not included in the insured’s estate, and therefore not subject to estate taxes.

In addition to estate tax benefits, ILITs can provide a source of liquidity for the trust beneficiaries. Upon the death of the insured, the ILIT receives the life insurance proceeds, which can be used to pay estate taxes, debts, or other expenses. This allows the beneficiaries to inherit other assets without having to sell them to pay expenses.

In conclusion, an ILIT is an effective estate planning tool that can provide significant benefits to individuals and their families. An ILIT can help reduce or eliminate estate taxes and provide liquidity to a decedent’s beneficiaries, among other things. By understanding what an ILIT is and how it works, individuals can make informed decisions about their estate planning strategies.

If you have any questions or are interested in learning more about this topic, please contact Lin Law LLC at (920) 393-1190.

A Lesson from the Estate of Abraham Lincoln: The Risks of Dying Without A Will

Posted on by

By Attorney Curtis A. Edwards

On the evening of April 14, 1865, Abraham Lincoln attended a performance of the play “Our American Cousin” at Ford’s Theatre in Washington D.C. As he watched the play, unaware of the tragic events that were about to unfold, he was simply a man enjoying a night out at the theater. Little did he know, that John Wilkes Booth, a well-known actor and Confederate sympathizer, would soon enter the theater’s presidential box and fatally shoot Lincoln. You may be surprised to learn that when Lincoln was pronounced dead the following morning on April 15, 1865, he died intestate, that is without a will, setting off a prolonged legal battle over his estate.

At the time of Lincoln’s death, his estate was valued at approximately $110,000, which was a substantial sum of money in 1865. Without a will, his estate was subject to the Illinois Probate Act, which dictated that his property be administered through the court supervised probate process. Under the intestate laws of Illinois, Lincoln’s property was to be divided equally among his widow and two sons. However, complications arose because Lincoln’s estate included real estate in multiple states and other assets held in Washington, D.C., adding to the overall complexity and duration the process.

Additionally, Lincoln’s estate included his personal papers and books, which were deemed valuable because of his status as a former president. His widow, Mary Todd Lincoln, claimed ownership of the papers, while Lincoln’s son, Robert, argued that they belonged to the estate. Despite the estate being administered by friend and Supreme Court Justice David Davis, the dispute over Lincoln’s estate went on for years, something Lincoln’s family undoubtedly would have preferred to avoid.

Given his background as an Attorney, Lincoln would have certainly understood the importance of having a will, so it is peculiar that he never took the time to create one. Perhaps he believed that his estate was relatively simple and did not require a will, or like many he may have simply procrastinated the task.

Regardless of the reasons, the challenges faced by Lincoln’s estate as a result of him dying without a will illustrate the importance of having a solid estate plan in place, regardless of profession or status. Even as a sitting president, Lincoln’s estate was still subject to the traditional probate process and his property and assets were ultimately distributed according to the default intestacy laws.

While Lincoln may be remembered primarily for his contributions to American history, his estate serves as a cautionary tale for those who neglect to plan for the future. By taking the time to create a comprehensive estate plan, individuals can help ensure that their legacy is preserved and their loved ones are provided for, even after they are gone.

If you have any questions or are interested in learning more about this topic, please contact Lin Law LLC at (920) 393-1190.

What Is An Irrevocable Trust?

Posted on by

by Attorney Curtis A. Edwards, J.D.

An Irrevocable Trust is a type of trust that cannot be modified, amended, or terminated once established, notwithstanding few limited exceptions. Like other types of trusts, an Irrevocable Trust has a grantor, a trustee, and a beneficiary. However, unlike a revocable trust, once the grantor places his or her assets in an Irrevocable Trust, that gift cannot be undone or revoked.

When a grantor establishes an Irrevocable Trust, they layout the terms of the trust, including who the beneficiary or beneficiaries will be, what the assets of the trust may be used for, and when and how those assets will be distributed. The terms of the trust become more or less permanent and cannot be changed once established.
The assets placed in the trust become the property of the trust and must be managed by a third-party trustee. The grantor cannot be the trustee of an Irrevocable Trust. In a nutshell, the grantor no longer has ownership or control of the assets once placed in an Irrevocable Trust. This termination of ownership and control is by design, of which creates certain benefits unique to an Irrevocable Trust.

As with other types of trusts, one of the primary benefits of an Irrevocable Trust is the ability to avoid probate. Upon the passing of the grantor, any assets that were placed in the Irrevocable Trust will not have to go through the public and court supervised probate process. Instead, the assets will be distributed by the trustee in accordance with the terms of the Irrevocable Trust, as originally established by the grantor.

Unlike a revocable trust, an Irrevocable Trust can shield assets from creditors. Because the grantor no longer has ownership or control over the assets, the assets placed in trust cannot be used to satisfy any legal obligations or court judgements, such as those that may arise out of litigation or divorce.

Another benefit associated with an Irrevocable Trust, is that it may allow the grantor or beneficiary to have or maintain access to publicly funded government benefits such as Medicaid or Supplemental Security Income (SSI) benefits. These types of programs have very low income and asset eligibility thresholds for recipients. Therefore, giving up ownership and control over certain assets by placing them in an Irrevocable Trust is a common way to obtain eligibility and ensure assets are not otherwise depleted.

An Irrevocable Trust can be a tool to achieve very specific estate planning goals. However, due to their permanence, their use requires a thorough understanding and accounting of the pros and cons of their implementation. For this reason, it is important that you consult with an attorney to find out if an Irrevocable Trust is right for you.

If you have any questions or are interested in learning more about this topic, please contact Lin Law LLC at (920) 393-1190.

What Is A Revocable Living Trust?

Posted on by

by Attorney Curtis A. Edwards, J.D.

A Revocable Living Trust, also known as an Inter Vivos Trust, is a type of trust that is created during a person’s lifetime and, as the name implies, can be revoked or amended by the grantor at any time during his/her lifetime.

Revocable Living Trusts are frequently used by estate planning attorneys as the cornerstone of trust-based estate plans, and for good reason. The primary purpose of a Revocable Living Trust in an estate plan is probate avoidance. Probate is the notoriously long, expensive, and public court supervised process used to settle an estate. Having all of your assets in a trust allows you to avoid the probate process, allowing your estate to be administered privately by a trustee.

In addition to their ability to provide probate avoidance, Revocable Living Trusts also provide individuals with a great deal of flexibility and control over the terms of the trust after it has been established. The revocable and amendable nature of a Revocable Living Trust allow grantors to make changes as needed to account for circumstances and issues that could never have been foreseen or never contemplated when the trust was originally established.

For example, a trust originally created twenty-five years ago might direct that certain assets be distributed to an entity or person, such as a charity or family member, with whom the grantor no longer has a relationship. A Revocable Living Trust allows the grantor to update or amend the language of the trust to ensure that the asset distributions and other provisions in the trust accurately reflect their current intentions and wishes.

Another advantageous feature of a Revocable Living Trust is that it allows the grantor to avoid court-supervised guardianship or conservatorship proceedings should they ever become incapacitated. A Revocable Living Trust often contains language that allows a named individual to become the acting Trustee and manage the property held in the trust if the grantor becomes incapacitated as defined by the terms of the trust. These provisions account for scenarios such as a grantor who is placed in a coma as a result of an automobile accident, or a grantor who later in life develops dementia and can no longer manage his/her affairs.

Another important thing to note about Revocable Living Trusts is that once the original grantor dies, the trust becomes Irrevocable. This means that the terms of the trust can no longer be changed and, thus, sets in stone the final wishes articulated in the trust by the grantor before the time of their passing or incapacitation.

As you can see, a Revocable Living Trust has a myriad of benefits, paramount being their ability to avoid probate, that make them an excellent foundation for most estate plans. However, a Revocable Living Trust may not always be the best choice depending on your individual needs and circumstances. For this reason, it is important that you consult with an attorney to find out if a Revocable Living Trust is right for you.

If you have any questions or are interested in learning more about this topic, please contact Lin Law LLC at (920) 393-1190.

What Is A Trust?

Posted on by

By Attorney Curtis Edwards, J.D.

A trust is a written agreement formed by the grantor(s) and a trustee(s) that creates a separate entity (trust) to hold assets such as real estate, bank accounts, life insurance, etc., subject to an obligation to keep or use those assets for the beneficiaries named in the trust. The obligation to carry out the specific terms of the trust are the duty of the trustee(s) named by the grantor(s) of the trust.

Trusts come in many different forms such as a revocable living trust, irrevocable trust, testamentary trust, marital trust, or insurance trust, just to name a few. Each type of trust serves a different purpose, but most commonly trusts are used as a vehicle to avoid probate, to preserve and transfer wealth responsibly, and legacy planning.

Trusts often provide a seamless way to transfer wealth from one generation to the next and allow the grantor(s) of the trust to put controls in place regarding how assets will be used and distributed, both during and after their lifetime.

For example, a grandparent (grantor) might create a trust for their grandchildren (beneficiaries) during their lifetime, specifically for the purpose of funding the college education of the grandchildren. The trust would layout specific instructions (provisions) for how those funds should be distributed, such as the maximum allowable distribution to each grandchild, whether the funds can be used for tuition or other things like room and board, and whether or not the grandchild must use their benefit by a certain age.

In some cases, such as with a revocable living trust, the grantor will also be the initial trustee charged with carrying out the terms of the trust. However, after the original grantor/trustee passes away or is no longer able to serve, a successor trustee will take over and continue those duties. The original or successor trustee can also be a trusted friend or family member, or it can be an institution, such as a bank. In either case, the trustee will ensure that the trust assets are maintained and distributed per the terms of the trust established by the original grantor(s).

If you have any questions or are interested in learning more about this topic, please contact Lin Law LLC at (920) 393-1190.

 

Lin Law LLC’s 10th Anniversary

Posted on by

10 years of serving the legal needs of local businesses, families and individuals. 

As we celebrate our 10 years of service to the community, we wish to share with you our heartfelt gratitude and appreciation for all the support we have received over the years. We are incredibly thankful for and humbled by the knowledge that the foundation of our existence has been largely built on our personal relationships we have developed with our clients, as well as the community’s estate planning, business and financial professionals. Most of all, we are grateful for the continued opportunity that we are provided each day to serve our dedicated clients, whether we have worked alongside them for just a short time, through the course of the last 10 years, or into the future. Thank you for your never-ending trust, warmth, friendship and support. We could not have done it without you and we look forward to serving you for many more years to come!!

With sincerest gratitude,

Lin Law LLC

Lin Law LLC’s Annual Christmas Party

Posted on by
Every December, Lin Law LLC celebrates the holidays with it’s employees and their families, a tradition that started almost ten years ago and has become something we all look forward to with each coming year. As we approach Christmas and the New Year, we at Lin Law LLC want to wish you all a joyful and blessed holiday.