Planning for Incapacity

While one of the predominant functions of a will is to see to the distribution of assets post-mortem, another function is to set in place a plan to manage your finances in case you are in any sense rendered incapable of managing them yourself. As people continue to live longer, the end of life increasingly […]

Adopted Children

The main probate issue that arises when a child is adopted, is whether the adopted child will be able to receive a share from their biological parent’s estates in addition to their adopted parents’ estates. Most states do not allow adopted children to inherit by descent from both biological and adoptive parents, but instead cut […]

Non-probate Transfers

Due in part to the expenses and complications of probate, wealth has increasingly flowed from one generation to the next through many available non-probate transfers. A non-probate transfer allows an asset to be passed from a decedent to designated persons without ever being part of the probate estate. There are multiple means to pass assets […]

Creditors of the Estate

The primary purpose of probate estate administration discussed thus far has been the distribution of the decedent’s property to devisees provided for in a will or descendants receiving through intestacy laws. However, the protection of creditors of the estate is another primary purpose of probate estate administration. Probate procedure offers creditors an opportunity to file a claim […]

Unintentional Disinheritance?—An Omitted Child

It is possible that a testator forgets to update his or her will after either having or adopting a child. Without a revision of the will that child will not be provided for under the will. Probate law has developed to protect children from such omissions. There can be no unintentional disinheritance. Here is the […]

Is an Ex-Spouse a Surviving Spouse?

The simple answer to this is “no.” To be a surviving spouse, the spouse had to be married to the decedent at the time of death. What about separated? Then the answer is “yes.” If a separation agreement, formed by the spouses and decreed by a court, does not formally terminate the status of “husband” […]

Entitlement of Surviving Spouse Under a Premarital Will

So what if you created a will before you got married? What if you fail to revise your will, or draft a new one, before you pass away? Under the Uniform Probate Code (and adopted in many states) there is a presumption that the decedent intended to include the surviving spouse in the will, though […]

When Do Intestacy Laws Apply?

We have already discussed the most obvious answer to this question. Intestacy laws apply to a decedent’s estate when the decedent dies without a will. Assuming there are assets left by the decedent that would be part of the probate estate, the intestacy laws in the decedent’s state would apply and the assets would be […]

The Preparation of a Will to Avoid Intestacy

A will is a testator’s final expression regarding the disposition of his or her property. There are many issues that should be addressed in a will, such as: the treatment of the decedent’s body (such as burial or cremation); the treatment of the decedent’s body parts (in cases of donation); the care for family members; […]

Beneficiary Deed

In previous posts about concurrent rights of ownership and the contents of a probate estate, I discussed different ways of holding property and what benefits exist for tax and probate purposes. I have also previously commented on the benefit of receiving property under a will because of the stepped up basis the recipient has in […]