Wills And Trust Information Center

Frequently Asked Questions about Wills and Trusts

Q: What is probate?

A: Probate is a court process to determine the validity of a will. If the will is found valid, the personal representative named in the will (the executor) will gather the assets of the testator to be appraised. The representative will then contact creditors so they may present their claims for any amounts due. After payment of debts, taxes and administration costs, the remaining property will be distributed in accordance with the will. In a situation where this is no will, probate allows the court to direct the distribution of a person’s assets in accordance with the state’s intestacy laws.

Q: What assets are included in my probate estate?

A: Probate assets are what you own at the time of death. This includes any property with your name on the title. It also includes personal items such as collections, antiques, cars and the value of any life insurance policies, trusts, annuities and/or retirement plans payable to the estate. If you own any stocks, bonds or other investments, these also are included.

Q: Where does probate take place?

A: Probate is a court-supervised process that takes place in Probate (or Surrogate) Court. Probate takes place in the county that was your legal residence at the time of your death. Out-of-state property will be subject to proceedings in the state in which it is located.

Q: Can anyone find out what I owned if I go through probate?

A: Probate is a public process. There is little to no privacy regarding the details of your will, your outstanding debts and the extent of your assets.

Q: Do I need a lawyer to draft my will or trust?

A: While having a lawyer is not required, it is a good idea to consult with an experienced estate planning attorney. Certain formalities must be followed when making a will or drafting a trust. Failure to follow those formalities can cause inconvenience, additional costs or even invalidation of the will or trust. In addition, there are often complex tax issues to consider when designing your estate plan. An experienced attorney can help you sort through these issues and make the right decisions for you, your estate and your heirs.

Q: How do I choose a guardian for my children?

A: A guardian should be an adult whom you trust to raise your children to age 18. Guardians are legally responsible for the physical care, health, education and welfare of the child or children under their supervision. Unless you make the proper provisions, the guardian you choose will not be paid for his or her services, nor will he or she be required to meet your child’s financial needs. You should ensure that there are adequate funds available to meet these needs, either through your will, trust or other estate planning tool.

Q: What is the difference between a durable power of attorney and a conservatorship or guardianship?

A: The main difference is your ability to decide who is in control when you are incapacitated. With a durable power of attorney, you choose the person you want to take over your affairs and act for you. A durable power of attorney grants the person you choose the power to act on your behalf on a range of issues determined by you. The person you choose is called your attorney in fact and he or she does not have to wait for you to be declared incapacitated before he or she can act under the durable power of attorney. In most states, a guardian is charged with caring for both your person and property while a conservator is responsible only for your property and money. A conservator and guardian are both appointed by the court and these appointments involve a court hearing to determine incapacity. A lawyer is usually appointed by the court to represent and safeguard your interests. The hearing will involve medical and/or mental-health professionals who will evaluate you and report their findings to the court, which will then make a ruling on your capacity.

Q: What will happen if I die without a will?

A: When you die without a will, your estate will go through intestacy proceedings in probate court. The state will then determine how to distribute your assets in accordance with the state’s intestacy laws. Generally, the surviving spouse and children receive the majority of your assets, but your parents and siblings also may be entitled to assets. If you want any part in determining how your estate will be divided after you are gone, it is important to work with an experienced estate planning attorney.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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