THE PROBATE PROBLEM

May 24, 2013

Types of Probate

Living Probate : Living probate occurs when you are still alive, however, unable to make decisions because you’ve been incapacitated by a mental or physical disability.

This is a special concern for Americans over the age of 65. Today, Americans are living longer, and have higher chances of becoming incapacitated once they cross the age of 60. Living probate is a very real possibility for many.

Death Probate: This occurs after you have already passed away. Most people mistakenly assume a Will circumvents any and all issues which may arise after one is gone, however that is simply not the case. A Will is still subject to going through probate court.

Such proceedings cost a fortune when factoring in attorneys fees, court fees, appraisers, and the length of time that these proceedings generally take. The money that you intend to leave behind to your children will be significantly less when they finally inherit it after the probate process.

If a married couple does not jointly own the property at the time of death of the owner of the property, the surviving spouse does not automatically get a right to the home. The property will be subject to probate.

If, in the case that the couple does jointly own the property, at the time of death of one of the spouses, the surviving spouse will inherit the property. However, at the time of their death the property will nonetheless be subject to the probate process before it can be passed on to another member of the family.

It is essential for couples who do not jointly own property to set up a Trust entitling their spouse to their home. This is also important in the case where one of the spouses has already passed away and the surviving spouse would like to leave behind their legacy to their children or other loved ones.

Avoiding Probate

A Trust, unlike a Will, gives you complete control over your assets, saves you thousands of dollars, and effectively eliminates the need for probate. It also protects you during your lifetime if in the unfortunate event you become incapacitated and unable to make decisions.

Juliet Gavriel, Esq.

Estate and Elder Law attorney

Practice Limited exclusively to: Wills, Trusts, Estates, Probate, and Medicaid Planning.

Located in Forest Hills- Queens, New York City, New York