Estate planning is the process of anticipating and arranging for the disposal of an estate. It involves looking at the big picture and breaking it into manageable components, coordinating the parts so that the total plan can meet your goals.
Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. Guardians are often designated for minor children and beneficiaries in incapacity.
Estate planning involves the will, trusts, beneficiary designations, powers of appointment, property ownership (joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety), gift, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney. Clients are also advised to create a lliving will (advance directive) document. Specific final arrangements, such as whether to be buried or cremated, are also often part of the documents. More sophisticated estate plans may even cover deferring or decreasing estate taxes or winding up a business.
Heirship Determination and Estate Administration
These procedures are generally scheduled in order to have a Determination of Heirship and Independent Administrationof the estate of a person who dies without a written Will. (This overview does not include information/procedures for an estate subject to federal estate tax or state inheritance tax. This overview, also does not cover any possible “disclaimers” by beneficiaries who desire to pass some of their portion of the estate to the next successive “heir at law”).
- Before any proceedings are commenced, a general overview of property owned by the deceased, should be compiled, i.e., Bank accounts, Stocks, Funds, Real property interests, titled assets, etc. All of these need to be listed in the application for Determination of Heirship.
- APPLICATION FOR DETERMINATION OF HEIRSHIP. The other potential heirs may sign a waiver and request that Administration be Independent (must be legally competent to sign the waiver, i.e., not a minor). APPLICATION FOR ADMINISTRATION OF ESTATE is drafted and forwarded for review.
- VERIFICATIONS (Notarized signatures) are required on both Applications.
- Both Applications (Heirship and Estate Administration) are FILED WITH THE COUNTY CLERK where the deceased was domiciled.
- Statutory wait for a Hearing. Since there will be an ATTORNEY AD LITEM APPOINTMENT for the Determination of Heirship, the wait for processing could be a few days or up to several weeks (depending on Court Assignment). Witnesses (who know about the deceased’s family history) would need to talk with the ad litem before any Court Hearing is scheduled.
- There must be TWO INDEPENDENT WITNESSES to verify the deceased’s personal and family history for Determination of Heirship. The Applicant is the single witness needed for Independent Administration. Before the Hearing, this office informs the Applicant and independent witnesses of the questions to be covered in Court. The Applicant is generally expected to pay the Attorney ad litem fee immediately after the Hearing.
- After the Hearing, the Administrator will sign the OATH AS ADMINISTRATOR, POST BOND, if required, and order LETTERS OF ADMINISTRATION (generally request Independent Administration, See: 2, above).
- Within 30 days after qualification as Administrator, a “NOTICE TO CREDITORS” is published in the appropriate newspaper in the County of Administration. (This office generally prepares the notice for publication and such notice and publisher’s affidavit is filed with the court.)
- Ninety days after the application to probate, INVENTORY is filed. (Inventory does not include insurance proceeds or annuity payable to individuals under a contract). This Inventory is generally a re-cap of what is in the Determination of Heirship. In a taxable estate a request for extension is generally filed.
- Within 2 months of qualification as Administrator, actual written notice should be sent by certified mail to all secured creditors (such as home mortgage) . While the estate is open, notice should be sent to all unsecured creditors who have not been paid (if an authenticated claim is not made within 4 months of receipt of the latter notice, the claim is forever barred).
- Alternative with multiple beneficiaries: The case may be dismissed from the Docket with proof that all creditors have been satisfied
- Within 9 months after the death, any Disclaimers (of beneficiaries) must be filed with the Probate Court.
- CPA consultation – (necessary if estate is subject to Federal Estate tax/State Inheritance tax)