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Probate Administration: How It Works

Probate administration is something that many people fail to fully grasp. This is compounded by the difficult times in which such administrative action is necessary, usually after a person has passed on and their last will and testament is acted upon. It is important to understand the basics of probate administration because families often find it difficult to come to agreement about money, property, or other inheritances after a loved one has passed away. The administrator is responsible for the smooth transfer of assets or pieces of the deceased person's estate to their beneficiaries. There are a few basics that are crucial to understanding the process and you don't have to be an attorney or probate administer to see the complexity of such a position.

The first basic tenet of probate administration is the fact that it costs money. This may seem like a simplistic statement, but many families are caught unaware of the potential costs of having their loved one's assets divided up in court. If at all possible, the hiring of a probate administrator is something that should be agreed upon before the deceased person passes away. This ensures that the deceased person's wishes are honored and the family is treated fairly and properly by the administrator. It is not uncommon for administrators to charge fees which can be later deduced from the value of the estate or assets. These costs are usually deducted before the assets are split between the family members and beneficiaries. The executor of the will, or the person who is officially tasked with carrying out the actions described in the will, will work closely with the administrator and the family to make sure the last wishes of the deceased are honored and respected. In many instances, if the estate owes money and has to go to probate court, the executor is required to provide a fidelity bond which acts as a sort of deposit against the possibility that the executor will abuse their power to distribute the deceased's assets.

Another important concept to keep in mind is that there is usually a strict time limitation for the beneficiaries to receive the assets or portions of the estate. Probate administration planning should be incorporated into he last will and testament of the deceased whenever possible. If one is not selected before the time of death, a petition can be filed by the family members that will help to resolve the administration issue and nominate one to take care of such duties. On a related note, real estate or personal taxes as well as lawsuits and settlements can also be levied during the first few weeks or months after a person passes on. These are also time-sensitive judgements or actions and will most often come out of the estate or assets before family even gets to divide them up.

Such an administrator also helps to notify creditors that the deceased person has passed and acts as a middleman of sorts for the family. The administrator will likely help the family notify these creditors and help them to publish or post legally-necessary notices. This allows each creditor to clear out any remaining accounts or settle them with the deceased's assets prior to the distribution to the named beneficiaries. This can be a long, complex process, especially if the person who passed away had lots of credit card debt or loans with banks and other creditors. Just like with taxes or lawsuits levied against the deceased, the beneficiaries are second in line to receive their loved one's assets and estate.

Each state handles probate differently and it is certainly worth your time to research and learn more about the details of the transfer of assets to beneficiaries after a loved one passes. The best way to be prepared and reduce the need for probate administration or even the potential for inter-family legal struggles is to have a conversation with your loved ones about such issues. Make sure their decisions are in writing and hold up to legal scrutiny. Once a person is gone, family members often scramble to be first in line for any benefits or inheritances. It is amazing that when money is on the line, the family's social dynamic can change almost overnight.

If a person passes on without a last will and testament, the spouse or next of kin is usually awarded the estate or assets associated with the estate. Again, these assets are handed over after the Federal and state governments make sure no back taxes or liens are owed and after creditors give their input according to the legal contracts entered by the now deceased. An excellent way to avoid all the probate headaches is to create a trust that allows for a probate-free transfer of money to the family of the loved one who has passed.


Article Source: http://EzineArticles.com/7084586

What Is Probate Litigation?

Definition

Probate is defined as the legal process of how the debts are paid and assets and property distributed of an individual who has passed away. Often times, the process involves a will and sometimes there is not one available. When a deceased individual's Last Will and Testament is offered for probate, there are many requirements and all heirs and creditors have rights, privileges, and limitations that must be strictly followed. The probate court identifies the assets of the deceased, assesses the taxes and other expenses, and distributes the funds and property to legal heirs listed in the will. A lot of probate matters are resolved without legal action, but when complications or requests for contest arise and the matter is discussed in court, it is called probate litigation. If a deceased individual has a large estate, various movable and immovable properties, and sizeable bank accounts, then their assets are more likely to be involved in probate litigation.

What is Probate Litigation?

Probate litigation involves the laws, codes, and statues that preside over wills, trusts, and the settling of a deceased individual's estate. It often includes disputes among relatives and challenging certain sections, provisions, or the entire Last Will and Testament. The Last Will and Testament can be disputed due to several reasons. The facts of individual disputes define the type of action that needs to be defended or prosecuted. The law of limitation is firmly relevant to probate litigation and even if there is a valid claim, a case will not be preceded by the probate court if the time limit has passed.

Types

• Undue Influence: claim that disputes whether the person creating the will did so in a free manner without being persuaded by an individual who was in a position of control and trust.

• Mistake in Execution: the execution requirement for a will to be valid in the state it was created does not meet all of the provisions and is therefore invalid.

• Lake of Mental Capacity: claim declared based on the belief that at the time the will was created, the individual composing the will did not have the essential mental ability to completely understand the amount and nature of the assets and property, the beneficiaries who would normally receive the property, and how the property is distributed by the terms of the will. Lack of capacity can be due to the natural aging process, diagnosed medical condition, or influence of medications. Lack of mental capacity claims are based on medical records and behavior o the individual prior to executing the will.

Other Activities

Probate litigation can also involve various other activities besides contesting wills including:

• Will Construction: in the case of a vague will where the document does not completely dispose the entire estate or beneficiaries have passed away, the court assists in how the deceased estate and property should be distributed.

• Heir Determination: when an individual does not have a will or has little contact with his or her family, the court determines the heirs.

• Accounting: beneficiaries have the right to an accounting of the assets and property and court assistance may be requested to receive an account of the assets of the estate. Beneficiaries may also object to the accounting if it is unacceptable for any reason.

Article Source: http://EzineArticles.com/6997853

LLC Vs Corporation - The Similarities and Differences

The LLC and the corporation are the two competing choices when it comes to deciding on a legal entity for running a business. Both offer the same level of personal asset protection for the owners of the business.

While the corporation has been around longer and so has a longer history of legal enforcement of its liability protection, the LLC protection provisions are based on the same principles and language of corporate statutes. What this means is that the courts will apply the same precedence by analogy when it comes to limited liability companies.

Management

A corporation must have a central body of management structure. This is accomplished with a Board of Directors. Every corporation has a Board and its members are elected by the shareholders to serve terms. The Board has the authority to manage the company. Generally the Board will hire officers to execute the day to day operations based on the overall decisions agreed to by the board. Shareholders in their capacity as shareholders do not have management authority.

The LLC is a flexible shell when it comes to management. There are no required structures and a central management body is not required. A limited liability company can be member managed - here, the owners (members) have management authority by virtue of being members. However, this entity can also be set up similar to a corporation and can create a Board of Managers as the management authority. In summary, an LLC can start with a blank slate when it comes to management structures and can define how it wants to be governed based on the specific circumstances.

Ownership

Both entities issue a unit of ownership to its owners. For a corporation, shares of stock are issued while membership units are given by a limited liability company. For a corporation, every share must represent an identical unit of ownership. For an LLC, there is the option to define different rights and obligations to members separate and apart from the membership unit. Corporate shares can be publicly traded if the business ever gets big enough to want to go public. There is no option for public markets for an LLC. It is more suitable for privately held businesses.

Management Structure Options

A third of the benefits of an LLC is that it is a flexible entity when deciding how the business will be managed. The members of a limited liability company can choose between two simple management structures: (i) member managed or (ii) manager managed. The laws afford this benefit by allowing members great flexibility in deciding how they want the limited liability company business to be managed and what rules to impose upon the business when it comes to governance and management.

Paperwork

The corporation laws of each state generally mandate that a corporation hold certain meetings and document corporate decisions with shareholder or director votes and resolutions. The limited liability company is not legally required to maintain as much paperwork or hold mandatory meetings, but it is always a good idea to engage in some governance and record keeping. Still, it is is preferred by busy business owners because the owners can focus more on operating the business without worrying about a lot of formalities or maintenance.

Tax Matters

The limited liability company beats the corporation hands down when it comes to taxation. This is because the IRS lets it be taxed however it chooses. It automatically qualifies for pass through, single layer of taxation but it can also elect to be taxed as a C corporation or an S corporation. The corporation by default is subject to double taxation which means that profits are taxed twice. It does not have any automatic qualification of a single tax structure, but there is a limited option to elect S corporation status if a corporation can meet and continue to maintain a laundry list of qualifications and limitations.

In essence, the LLC is more of a small business vehicle while the corporation is for larger businesses and ones with a larger investor base.

Article Source: http://EzineArticles.com/5466917

Advance Directives and Do Not Resuscitate Orders Explained

An advance directive outlines what wishes your doctor must follow if you become unable to make your own medical decisions. When you're admitted to the hospital usually the staff will ask you if you have an advance directive, or you can hand your doctor and hospital staff a copy yourself if they don't ask.

An ideal advance directive would be to describe the kind of treatment you would want depending on how sick you are at the time. Also, an advance directive is made to describe what to do if you have an illness that you most likely have no chance to recover from, or if your in a coma what kind of care you wish. The most important thing on an advance directive is what you don't want your doctor to do otherwise a doctor will usually do everything in his power he feels is necessary. However it works both ways, you can demand certain treatments no matter how ill you become.

The laws and forms on advance directives are usually different for every state, its important you get your state's specific form that conforms to your state's laws.

The good thing about an advance directive is that you don't stress out your family and loved ones by putting the burden of making medical decisions for you. If your 18 years or over you can prepare an advance directive.

A do not resuscitate order is like an advance directive but very specific. A do not resuscitate order is made for you to request if you want cardiopulmonary resuscitation (CPR). Usually if you don't fill this form out the whole hospital staff is trained in CPR and also trained to revive you using CPR if your heart stops or you stop breathing. Do not resuscitate orders are accepted in all states.


Article Source: http://EzineArticles.com/393389

Transfer Of Ownership By A New Deed

There are some of you who many need to make changes in the ownership of your property. If you have owned a property in your own separate name and are now newly married and want to add your wife as part owner to the property, you would create a new Deed which would add her as a new part owner of that property. Normally a Quit Claim Deed is used to do this. In this case the title of this property would then be under your name and your wife as Community Property with Right of Survivorship. In this case if either party dies the property can pass directly to the surviving spouse without a court probate action.

A Deed is a legal document which transfers ownership or an ownership interest in a home, commercial building or parcel of land to another person, trust, living trust, partnership, limited liability company, corporation or any other legal entity which may own property under the law of that state. Real Property is always under the jurisdiction of the
state in which it is located.

This deed must describe the address of the property and have the legal description which legally describes the property printed or typed on the Deed. The party granting the deed transfer is called the "Grantor", and the party receiving the deed transfer is called the "Grantee."

This document lists all of the names of the parties that are involved in the real estate transfer. Once the deed has been signed it is recorded in the County of Record by the County Recorder and is made part of the public record, and any member of the public can view the deed transfer if they examine the public records.

There are many kinds of deeds with which real estate property is transferred. For example, a warranty deed guarantees that the "Grantor" owns the title, while the quitclaim deed only transfers the interest in the real property that a "Grantee" has. Most married couples normally hold title to real property under community property with right of survivorship. People who are not married can hold real estate ownership as Joint Tenants with right of survivorship. This means if one party dies then the other party's ownership interest will pass directly to the surviving spouse or partner.

Most deeds are recorded as a title transfer from a sale by the use of a title company which searches the public record and insures that the "Buyer" gets a clear title from the "Seller." This insurance policy assures the Lender there is a real estate loan being used to acquire the property that their loan documents will be in first or second position and that there are no deed restrictions, unpaid taxes, easements, bond assessments or other possible easements or encroachments on the property.


Article Source: http://EzineArticles.com/6180590

The Benefit of Living Wills

When the time comes, wouldn't you love to save your loved ones from any unnecessary trauma and expense? It's a wise choice to take time to plan ahead for the day when you might not be able to make any more choices on your own behalf. Living wills can quickly be created without the help of a lawyer. They make your choices and desires known when you can't and so you're family won't have to.

But living wills are not your last will and testament. It doesn't involve issues like probate or distributing your assets to your family or friends. They are also called advance directives and are primarily used to either express your wishes if you are incapacitated or to appoint someone to speak on your behalf. Simply put, this person or the form itself speaks for you - fulfilling your wishes if you become unconscious or terminally ill.

How are living wills created?

The forms can be found online for each individual state. It's important to make it apply to the state you are a legal resident of, in order to comply with that state's law. These forms may also be obtained from your family doctor. This form may need to be witnessed by two people and it may also require notarization.

One of the most important aspects of this vital form is who you choose as your representative. They don't need to be related to you, but they certainly should be trustworthy. It's also helpful, but not necessary, for this person to live generally in the same area as you for close proximity in case of emergency.

Another great aspect of this form is for expressing your desire to be an organ donor and for your final arrangements. But, you are not locked into your decisions until you become permanently unconscious which must be determined by a medical expert. Up until that time, you still have the power to change your mind from the time of the form's creation.

Make sure you give a copy of your advance directive form to your representative, your physician, any other healthcare providers and any other family members or friends who may become involved.

Some of the medical options you will need to choose are the following situations. All of these are on a "as-needed" basis.

1. If CPR should be performed.

2. If you should receive oxygen.

3. If you should be kept alive through artificial feeding and hydration.

4. If you should need dialysis.

5. If you should need pain medicines.

It's not possible to cover every single aspect of living wills in this article, but I hope to have given you some food for thought.

Peace of mind is what you will receive - for you and your loved ones. Remember, they will already be going through a tremendous amount of suffering if this time comes in your life. You will want to make some easy choices now in order to save them more difficult ones later.


Article Source: http://EzineArticles.com/7130598

Can I Get Full Child Custody in Uncontested Divorce?

Divorce is hard as it is; which is why many couples who are getting divorced choose to go the uncontested route because it is easier, simpler and less painful in many cases. An uncontested divorce means that both parties reach an agreement as to a divorce settlement involving division of assets and property, child custody, child support, spousal support, etc. without the assistance of the court. The minute that one of the parties objects to a certain issue or the couple is unable to reach an agreement, the divorce becomes contested and is no longer uncontested.

If the couple has children, an officer of the court may still be involved to help determine child custody and child support issues. This is where a lot of divorces become contested, as both parties are hoping for full custody of their children. When this happens, both parties should speak with their attorney and the court at this point may get involved in determining custody and support. Still, if there are no objections to one parent receiving full custody, the divorce may stay uncontested, so to answer the question posed in the title, yes it is possible.

Parents should be aware that full custody often refers to full physical custody, meaning that the child will live with them permanently. However, the non-custodial parent is often still granted visitation rights on weekends, holidays, etc. Physical custody may also be joint in which both parents share physical custody of the child. Even if one parent has full physical custody, joint legal custody is often granted. Legal custody refers to who is making decisions regarding the child's health, education, religion, etc. Many divorces end in full physical custody and joint legal custody, but it varies from one case to the next.

Uncontested divorce is a great way to avoid animosity that often arises when the couple is fighting over certain issues. When children are involved, animosity in the divorce may be very stressful on them, especially when they are being tugged in two directions. This is why some couples choose to keep the courts out of it as much as possible and reach an agreement on their own. This may not only help reduce the stress on the child, but may also help reduce the stress on the couple getting divorced. The uncontested divorce may also be less expensive than a contested divorce, adding to its appeal.

Article Source: http://EzineArticles.com/6360724

A Broad Look Into Guardianship

Guardianship often referred to as conservatorship is the care, attention and the overall management of a person in need. It is administered to the incapacitated. It is synonymous the legal proceedings in the courts in which a guardian is appointed to take care of an incapacitated person. The guardian is anyone either an institution or an individual appointed by the courts to exercise the full control of incapacitated persons.

An incapacitated person is legally known as a ward. Minors, children who have not attained the threshold age of adulthood usually eighteen years are all incapacitated. Moreover an adult individual with mental, physical or any disability is greatly incapacitated since they cannot provide basic needs for themselves manage their health or make any sound decision. A guardian should be in place to take care of them.

The conservatorship is dully administered by a guardian who a wide spectrum of duties and responsibilities to perform. The guardian should provide day to day care of the incapacitated. They should make sure that everything is smoothly running in the life of the incapacitated. Provision of food, health, clothing, security, education and shelter is all their responsibility. The guardian is expected to show love, respect and attention to the incapacitated.

For minors, the guardian should contribute fully towards their development. They should help the children grow up morally and spiritually straight. They are obliged to morally support the children as they grow up. This can be achieved by teaching them how to cope with the challenges of life, how to achieve success in any undertaking, how to socialize with their peers and working hard. They are entirely responsible for the behavior and discipline of the children.

The guardians are as well required to make the final decisions regarding the affairs of the incapacitated. They should decide where to live, which school to take them, the hospitals they should attend, which culture or religion they should embrace or any change in their names. In a nutshell they take the overall parentage responsibilities.

Conservatorship can arise from a number of ways. A parent can list a person in their will to be the guardian in case the parent dies. This care giver is often called a testamentary guardian. They are trustees anointed by the parent to take their responsibilities in case the parents pass away or become incapacitated. They posses all the power, duties, rights and responsibilities as are the real parents of the incapacitated. A testamentary guardian is often a trusted friend of the parents.

Conservatorship can also be granted by the courts. The court can appoint a trusted institution or an individual as the guardian. The guardians take the overall responsibilities of the parents but are answerable to the courts. Moreover, the court can appoint somebody usually child youth and family services to represent the court in Conservatorship related petitions.

Guardianship is not permanent. If the person recovers from the condition making them incapacitated, conservatorship terminated. Equally true is the situation where a minor reaches the age of eighteen. The rights of the wards are hence restored. The courts can also nullify the conservatorship if the guardians fail to honor their responsibilities.

The information you obtain in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Article Source: http://EzineArticles.com/7101333

3 Reasons You Should Have an Operating Agreement for Your LLC

Forming an LLC, or limited liability company, is a sound strategy for even the smallest new business. It offers legal protection for your assets, and gives you more options regarding how your taxes are handled than you would have as a sole proprietorship or independent contractor. If these sorts of protections are what prompted you to go the LLC route, an operating agreement is practically mandatory. These agreements can offer you further protections while ensuring you maintain the proper level of control over your LLC management.

Limited Liability Company Operating Agreements Give You More Control of Your Business

When you begin the process of forming an LLC, you will learn that the government has already established a set of general guidelines for how these types of businesses should be governed. What may not be quite as clear in the documentation, though, is that without an operating agreement these guidelines are applied to your business by default.

In essence, your LLC management structure, and even the allotment of your profits, is automatically determined by state and federal guidelines. Luckily, these guidelines tend to have one commonality across the board: the ability to individualize aspects of your LLC management through the use of an operating agreement.

Of course, your agreement may not include any rules that violate the law, but you still have quite a bit of freedom to make your own adjustments, provided you do so in the form of a formal operating agreement.

An Agreement Helps You Solidify Your LLC Management Structure

This aspect is particularly important if you are forming an LLC with one or more partners. An operating agreement detailing each partner's position, responsibilities and even voting rights in regard to major issues can save you from significant hassles down the road.

As any successful business owner can confirm, comprehensive written policies are the backbone of a good company. Consider the agreement your company's very first official policy.

You Can Further Protect Your Assets Should the Worst Occur

Your goal, of course, is to stay on the good side of the law so that you will never have to defend your assets in court. If, however, you do find yourself in the legal situation such as filing for bankruptcy, an operating agreement can help you keep your business and personal assets separate.

If you are the sole owner of your business, this precaution is likely part of the reason you decided on forming an LLC as opposed to a sole proprietorship. While this should be enough to keep your assets legally separated, in some cases the courts will require further evidence of the separation. An operating agreement that lays out exactly which assets and property belong to the business keeps the waters from being muddied, offering you the best possible protection even in the worst-case scenario.

An Operating Agreement is an Essential Part of Forming an LLC

As you can see, there are numerous benefits to writing an operating agreement, whether you plan to be a business of one or 100. Creating more paperwork for yourself may be the last thing that you want, but the control and protections it can provide make it a worthwhile endeavor, if not an essential step in building your limited liability company.

Article Source: http://EzineArticles.com/7068498