Probate is the legal process that is often required when someone dies. Although the process may vary somewhat from one state to the next, there are commonalities. Probate begins when someone petitions the court to probate the decedent’s estate and admits the decedent’s Last Will and Testament to the court, if one exists. The court then appoints a personal representative or executor. If the decedent left a will, an executor was likely named in the will. The court must still approve of the nomination. In the absence of a will, the court will appoint someone as personal representative.

The executor or personal representative is then charged with making a complete inventory of the decedent’s assets. All assets must also be valued and an inventory list submitted to the court. Notice of the probate is required to be given to beneficiaries and/or heirs as well as to the public by publications in a local newspaper. Claims can then be made against the estate for debts which are approved or denied by the executor or personal representative. Taxes must also be paid by the estate in some cases. A final accounting is eventually submitted by the executor or personal representative to the court for approval, If no disputed claims or a will contest against the estate have been filed, the court will then release the assets to the beneficiaries or

Just as you make provisions in your estate plan for family members and loved ones, you can provide for your pet in the event of your death. Granted, your pet cannot manage his or her own money, but that can be accounted for as well with the creation of a pet trust. A pet trust operates in much the same manner as any other trust, except the beneficiary is an animal instead of a person. You will need to designate a trustee to oversee the trust as well as someone to handle the day to day care of your pet upon your death. While they can be the same person, they do not have to be. After that, you simply decide on the amount and type of assets you wish to use to fund the trust and your pet trust is created. By creating a pet trust, you can rest assured that your pet will be cared for after your death just as he or she was

Individuals typically avoid the probate process for three primary reasons. One of them is the fact that probate is a public proceeding, and it allows for interested parties to step forward and challenge the will if they choose to do so. Many would prefer to keep their final affairs private and keep the door closed to those who are unwilling to honor their wishes.

Probate can also be a rather long and drawn out affair, taking anywhere from several months to several years to run its course in complicated cases. Of course the heirs to the estate do not receive their inheritances until the estate has been probated and closed. In addition to this, there are significant costs associated with probate that can erode the overall value of your estate considerably, and every cent that is spent is money that could potentially have been in the pockets of your loved ones.

If you do choose to use a trust as your vehicle of transfer it would probably behoove you to include a pour-over will as well. Most people are going to have some property remaining after they pass away that was not placed into the trust either because they obtained it after the trust was created or because they had practical reasons to retain personal ownership. The pour-over will accounts for property of this nature by directing it into the trust upon your death.

State laws determine when a guardianship is needed, how to petition for one and sets the limits of authority granted to a guardian. In addition, terminology may vary by state. As a general rule, a guardian has authority over the ward while a conservator has authority over the estate of the ward.

In order to become a guardian, you must file a petition for guardianship, or similar document, with the appropriate court. This is typically the probate court; however, it may vary by state or city within a state. After the petition is filed, anyone with an interest in the proceedings is entitled to be notified that the petition was filed, including the ward. The court will then schedule a hearing to determine two things — if the ward is legally in need of a guardian and, is so, whether you are an appropriate person to be appointed guardian. Given the importance of being appointed guardian, you may wish to consult with an elder law attorney once you see the need for appointment

According to the United States Department of Health and Human Services some 70% of senior citizens will someday need some form of long-term care, with 40% of them residing in a nursing home at some point in time. With the average nursing home stay being upwards of 2 1/2 years, you’re potentially looking at some pretty hefty end-of-life expenses. How do you meet these expenses?

Long-Term Care Insurance

The purchase of long-term care insurance can provide you with the peace of mind that you need, but it must be noted that this type of coverage is quite expensive. The younger you are when you obtain coverage the more affordable it is, and this is something to keep in mind when you’re making plans for the future.

Veterans A & A

Veterans of the United States armed forces who have served at least 90 days on active duty with a minimum of one of these days taking place during a time of war may be eligible to receive the Veterans Aid and Attendance pension. Single veterans who need assistance with their day-to-day personal needs can qualify for over $1600 per month.

Medicaid

Many people are surprised when they hear that Medicare does not cover long-term care expenses, but Medicaid does under certain circumstances. You must meet the financial need requirements, but when you consult with an estate planning attorney you’ll find that it is possible to qualify while still retaining ownership of a significant amount of your personal property.

The “pay on death” option is typically available for bank, retirement and investment accounts as well as securities registrations. Some states also allow vehicles to be registered as “pay on death”. Imagine that you have a bank account with a substantial amount of money in the account. Your intention is for your child to have the money in the account upon your death. Titling the account as a joint account is an option; however, if you do not want your child to have access to the account while you are alive, then the joint ownership option will not work.

When you die, the funds in the account will become part of your probate estate. In most states, this means the funds will be frozen until a court is satisfied that all legal requirements have been met to transfer the funds to your beneficiaries or heirs. This can take months, or even years, to accomplish. By simply converting the account to a “pay on death” account, the funds held in the account are legally transferred immediately upon your death to your child, thereby avoiding the need for them to be held up in the probate estate process.

This is a mistake because that initial plan is going to have been devised based on your life as it stood on that day. Time marches on, and inevitably things change, both within your family and throughout the society as a whole and many of these changes have an effect on your estate plan.

With this in mind you would do well to recognize the fact that the estate tax parameters are scheduled to change in the beginning of 2013. Because of the passage of the piece of legislation that has come to be known as the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 the current maximum rate of the estate tax is 35% and the exclusion is $5 million. But this tax relief act is going to expire at the end of 2012. As the laws currently stand, the exclusion will go down to $1 million and the rate will rise to 55% at that time.

Legislative changes that would impact these parameters are certainly possible. But at the same time, right now there is a congressional committee in place that is devising a plan for reducing the federal debt by $1.5 trillion over the next decade. This is going to require spending cuts. Given this reality, pushing for further estate tax relief at a time when tough cuts are being made may be a difficult sell in some quarters.

It may be unrealistic to expect the typical layperson to stay on top of all of these intricacies. This is why it is a good idea to develop a relationship with an experienced estate planning attorney who will gain an understanding of your situation and let you know how to proceed in light of any changes that may take place.

Life itself can be viewed as a journey, and along these lines it is important to make preparations for all the eventualities of aging. You can’t say with certainty what the future will hold, but what you can do is become aware of the facts, understand the possibilities that lie in wait, and make the appropriate plans for addressing them.

One of the challenges that many people who reach an advanced age experience is that of mental and/or physical incapacity. Believe it or not, upwards of half of the people who are described in geriatric circles as the “oldest old,” those 85 years of age and up, are suffering from dementia. This is largely due to the ubiquity of Alzheimer’s disease. Dementia can make it impossible for its victims to make sound decisions regarding health care and financial matters.

To prepare yourself for this possibility it is advisable to execute durable powers of attorney. With these documents you empower representatives of your choosing to make medical and financial decisions for you in the  event of your incapacitation. Because of the fact that they are in fact “durable” they do remain in effect upon the incapacitation of the grantor, unlike standard powers of attorney.

If you do not have an incapacity plan in place a guardian that you did not choose yourself could be appointed to act in your behalf should you be deemed incapable of making your own decisions at some point in time. Most people would prefer to select their own decision-makers, and this is why capacity planning is so important.

These are practical considerations and they are part of any holistic and comprehensive plan for aging. But there is another component that you may want to consider adding that is called an ethical will.

The ethical will is not used to transfer property or make any legally binding statements. These documents have been used in the Judaic tradition going back to biblical times, but at the present time they are recommended for everyone regardless of their background by many estate planning attorneys and other professionals who work with seniors.

Ethical wills have traditionally been composed to pass along the spiritual and moral values of the author; “rules to live by” as it were. Being privy to such an instructive document coming from the source of a bequest that you are receiving can be a very meaningful experience that helps you understand how to go forward with newly found financial abilities.

Over the course of a lifetime elders learn lessons that only experience can teach, and the fact that you will no longer be around to share your wisdom with your loved ones can leave you with an empty feeling. By composing an ethical will you are able to pass along your knowledge to future generations and in so doing provide them with access to your insights into perpetuity.

The most important factor in determining whether an estate must pass through probate is what state the decedent died in, or was a resident in at the time of death. Complications can arise right away regarding which state has jurisdiction in the event that the decedent owned property in more than one state. Once the issue of jurisdiction has been settled, however, the laws of the state with jurisdiction over the estate will dictate which probate procedures are required or available.

Typically, estates with significant assets, real property or where the decedent died intestate–or without leaving a valid Last Will and Testament — must go through formal probate. Formal probate can be lengthy, costly and complicated; however, assets of the estate cannot be transferred until the probate process has been completed through the appropriate court.

While a formal probate process is often required, many states also offer the option of a less formal small estate administration or small estate affidavit. If the decedent’s estate is valued at under a certain dollar amount, which varies by state, then a small estate administration or affidavit may be an option. In essence, both these options allow the estate assets to pass to the beneficiaries in a more rapid manner than a formal probate as well as avoid the often high costs associated with formal probate of an estate.

The only way to know for certain which probate process is required in your particular scenario if to contact an experienced probate attorney. Choosing the wrong process can cost you significant time and money as well as hold up the transfer of your parent’s assets.