What the heck is succession?

When Probate is required, it doesn’t have to be complicated. One disadvantage of Probate is that the assets of an estate take longer to reach the heirs.

Estate administration is a term that refers to the process of legalizing the estate of a person who has died. This legalization process includes the collection, inventory and appraisal of assets; pay and collect debts; presentation and payment of inheritance taxes; and distribute the remaining assets to the beneficiaries. Experienced probate and estate administration attorneys can help simplify this complicated process and provide guidance along the way.

An executor may be held liable for improper actions and may have to repay the estate for the amount of value lost due to the executor’s improper actions. An important but sometimes neglected responsibility in managing an estate is looking for opportunities to preserve assets for distribution. Reducing estate taxes is one way an estate can retain more of its estate for the decedent’s heirs.

Some of the ways to accomplish this are: Consider whether administration expenses and casualty losses should be reported on the estate tax return or the estate income tax return. Consider whether there are income tax savings opportunities on the decedent’s final return (for example, whether or not to file a joint income tax return with surviving spouse) Consider whether assets should be valued on the date of the death of the decedent or six months later (or, if the assets have been distributed before six months after the death of the decedent, the date of disposition of the assets)

Probate can be a costly and lengthy process, especially for beneficiaries who may have to wait one to two years to receive the property left to them in the will. There are certain types of assets that do not have to go through probate and are available to the beneficiaries upon the decedent’s death. These generally include:

Co-owned property with rights of survivorship

Bank pay-on-death (POD) accounts

Titles transferable on death (TOD)

life insurance proceeds

IRAs, 401(k), and other income from tax-deferred retirement plans

Revocable Living Trusts:

Revocable living trusts are similar in form and substance to wills. These instruments allow the creator (the testator) to transfer title to the property to the trust. During life, the testator can maintain control of his assets, with the ability to sell, buy or transfer the property as he wishes. The trust can also be modified or terminated at any time by the testator.

Upon death, the property in the trust does not become part of the estate because title to the property is owned by the trust, not the decedent. The designated trustee in the revocable living trust will then be in charge of managing the trust and distributing the property to the beneficiaries according to the terms of the instrument.

Many people use revocable living trusts as a way to limit the amount of property subject to probate. Revocable living trusts are often advertised as a way to avoid probate altogether, but are often paired with a will that disposes of any property not specifically named in the trust.

Guiding an estate through the probate process and managing it effectively requires a thorough understanding of probate and tax law. If you need help managing an estate, contact an attorney experienced in probate and estate administration to ensure the most effective administration of the estate.

The fact that a person (the decedent) leaves a will does not guarantee that the decedent’s property will be distributed according to the terms of the will. Generally, a court must provide an opportunity to allow others to object to the will, and any person interested in the will who believes the document is invalid in any way can file a challenge. A contested will is an action that challenges the validity of the will and is generally governed by state statutes.

If you believe a will is invalid, or if someone is challenging a will that you are administering or benefiting from, you should contact an attorney experienced in contesting wills. An experienced attorney can help you with these types of difficult and emotionally charged cases and can advise you on the best course of action under the laws of your state.

Grounds to contest a will include:

· Later testament. If a later will was made, and the making of the will met the necessary legal requirements, then the later will supersedes the earlier will.

· Disability. A valid will requires that the decedent was of sound mind at the time the will was made. The “sound mind” requirement generally requires that, at the time the will was made, the decedent had the ability to generally understand the nature and extent of the assets to be disposed of, their relationship to those who would naturally claim a benefit of the will, and the practical effect of the will as executed. Proving that the decedent was mentally ill or under the influence of alcohol or drugs at the time the will was made are ways of establishing incapacity.

· Undue influence. If at the time the will was made, the decedent did not exercise judgment in making the will, but did so in accordance with the wishes of another, the will may be declared invalid by undue influence. Coercion, duress, and fraud are examples of improper influence.

· Improper Execution. A will must be properly executed to be valid. This requires that the creation and execution of the will conform to state requirements, which may include that the will must be in writing and signed by the person making the will (the testator) and that the will must be witnessed or notarized .

· Forge. A will may be declared invalid if any part of the will, including the terms of the will or the signature of the testator or witnesses, is found to be falsified.

There is a limited amount of time set by state law to challenge the validity of the will on one of these grounds. If the validity of a will is successfully challenged, the probate court may:

Reject only the portion of the will that is successfully contested

Admit a prior valid will (if one was made) in its place

Determine that the decedent died intestate and distribute the assets according to the state’s intestate succession laws, which are the default legal rules for probate without a will.

Conclusion:

The consequences of a will contest are significant for all parties involved. If there is a possibility of a challenge to the will, contact an attorney experienced in probate and estate administration to make sure his rights are protected throughout the process.

Gladys Wiles, Esquire

Snyder & Wiles, P.C. (610-391-9500)

www.snyderwileslaw.com