Probate and Administrative Process, Know Your Rights

Probate is the system in which the court's system's method of processing the estates of a dead person. It is a legal document that enables the administration of the estate of the deceased. It allows for the resolving of claims and distribution of the deceased's will. Any grievances surrounding a deceased person's estate are filed in the probate court also known as the surrogate court. Once probated, the will becomes a legal instrument that can be enforced by the executor.

Administration process

Administration process of an estate on the other hand is the process by which the deceased person's assets are collected, maintained and distributed. An estate administrator sees to the proper administration of the will.

The Probate process

The probate process begins after the death of a person. An interested person files an application to administer the estate; a fiduciary is then appointed who is to administer the estate and at times may be required to pay a bond to safeguard and to insure the estate. Creditors are notified and legal notices published. There may be filed a petition to appoint a personal representative may need to be filed and letters of administration obtained. All these processes must be done in accordance with the limitation clause.

Property that avoids probate

Property that passes to another person contractually upon the death of a person does not enter probate for example a jointly owned property with rights of survivorship. Property held in a revocable or irrevocable trust that was created when the grantor's was still alive does not also enter probate. In most of these cases the property is distributed privately and without many issues thus no court action is required.

What happens in the probate and administrative process?

After a probate case has been filed in court, an inventory is entered and the deceased's property collected. The debts and taxes are paid first then the remaining property distributed to the beneficiaries. The probate and administrative process may be challenged at any time as a whole or part of it. The issues that arise during such hearings include will contests and paternity issues and these have to be solved before the matter is decided.

The need for the appointment of an administrator arises where the deceased left no will, some assets are not disposed of by the will, in cases where there is a will however, the case goes to probate directly. The estate administrators act like will executors but where the will does not state how to distribute of property, they follow the laid down laws.

Visit the Law Offices Roman Aminov Brooklyn to learn more on Probate Attorney Brooklyn law processes.

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Do Not Resuscitate (DNR) vs. Living Will

Do Not Resuscitate (DNR) order covers two types of emergencies: when your heart stops beat or you stop breathing. Living wills covers almost all types of life-prolonging treatments and procedures.

What Is Probate Law and How Does It Affect You Today?

Have you made your will official yet? It is not pleasant to talk about, but death will inevitably take us all at some point in our lives. Having an officially recognized will ensures that your estate goes to the people that you want it to when you pass away. The simplest definition of probate is 'the official proving of a will'. The laws of probate can be overwhelming at times, especially when emotions are still raw. It does serve its purpose however as not having a will (in-estate) makes the procedures a lot trickier and the results which can take months may not be what stakeholders deem right.

When a will is filed with the courts, the process for probate varies from country to country, even city to city. However the basic process is someone close to the deceased approaches the courts to act as 'executor', once the executor is established the process starts by collecting all assets and getting a value for the total. Once debts have been paid, the remaining assets can be distributed as per the will before the probate process is formally closed.

The Executioner

The executioner is usually the closest person to the deceased (wife, daughter, father etc.) or a close friend.

Probate affects you today in two ways. As someone who files a will and as a person nominated to be the executioner of a will.

Writing Your Will

Writing a will may seem like a death wish, it is something no one wants to ever think about however there is an incentive. You likely have worked hard for what you have acquired in life and would like your estate to be distributed as you see fit according to your values and wishes. It is also to protect your family, pre nuptial agreements may appear to only be agreed to when a high profile celebrity gets married, or someone wealthy but they are doing it for the same reasons as a will. The subject of money makes people act in irrational ways to protect themselves. Family members may lay claim that they should get everything, while others believe it should be theirs. It is not a nice situation for all involved. By writing your will now, you ensure that these disagreements can be solved by simply reading your official legal will.

As The Executioner

As the writer of the will, you will normally want to tell the person who you are leaving in charge of your estate should tragedy strike. It isn't the easiest conversation to begin, but knowing you have someone you trust can put your mind at ease. When someone brings up the subject with you, there is no set way to react. Simply listening to their requests is best, do not try and influence them either way. If you are unsure of anything though, do ask. Documenting everything possible is the safest option as emotions may get in the way of what was truly requested. In a perfect world there will be many, many years to you put everything in place exactly the way you wish. Make it a common practice to revisit the will every couple of years, to verify that it fits how you feel at that time.

Probate is something most people will deal with from both sides as the executioner and the writer of the will in their lifetime. Having a will ready so that the probate law process can be handled appropriately by all parties is law that should be taken seriously.

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Situations Where Your Last Will May Be Considered Void

Drafting a last will and testament is something we only hope to do one time. Creating a document that specifies our wishes after our deaths can cause some anxiety in that we are reminded of our mortality, but more than that making changes to a will can cause headaches if not done correctly. You also risk voiding your will under certain circumstances. In order to keep your friends and loved ones from inheriting any headaches along with your estate, it is important to know exactly what events can void your will.

If your will is judged void after your death, it opens the door to any number of disputes between family and friends as they argue over dispersing your assets. Charities you wished to benefit from your generosity may not receive the funds you set aside for them, and even your burial plans may be altered. It is important, therefore, to make sure you following everything to the letter. Here are a few situations that could lead to voiding your will.

1) You make unauthorized changes. When you complete a will, it is typically signed and witnessed, and notarized. If you make written additions or deletions anytime after that period, somebody could contest the validity of the will and cause problems. If you want to make corrections after the legalities are complete, you can either destroy the current will and start over, or draft a codicil to accompany the will you current have.

2) You were not of sound mind when you wrote the will. Some people may be pressured or heavily encouraged to draft a document in order to bring peace of mind for your family. However, a will written under duress or other influence could be proven invalid if somebody believes you were not of sound mind at the time. You want to make it perfectly clear that your wishes are your own, and that you have not been forced to write anything you didn't want to write.

3) Changes in marital status. Depending on the laws in your state, a will drafted before a legal marriage or divorce could allow a party to contest your will if you do not have it changed. If you have a will ready and decide to marry or remarry, speak with your attorney about what needs to be done to ensure your wishes are kept intact.

Take care to know what factors could render your last will and testament void.

Kathryn Lively is a freelance writer specializing in articles on North Carolina lawyers and Outer Banks lawyers.

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Getting Your Record Expunged

If you have a criminal record, you're no stranger to the ill effects it can have on your life. Background checks are increasingly common among employers, property owners, and various employment licensing agencies. A new study published by the Office Journal of the American Association of Pediatrics, indicates that around 25% of Americans have been arrested at least once by the age of 23. Even a criminal charge from many years ago can affect your chances of being hired or rented to. For some people, depending on various factors of which we'll discuss here, expungement may be a way to eliminate the hassle that is caused by a criminal record.

What is expungment?

Expungement refers to a process in which a person with a past criminal record petitions the court to have his/her record sealed (expunged). A sealed record is then unsearchable by the state and federal agencies that provide information for background checks. A person who has had their record expunged would proceed as if the criminal charge or conviction never occurred. Therefore for questions on employment or rental applications that ask if you have a past criminal conviction, it would generally be appropriate to answer 'no'. Generally, the FBI and police officers still have access to your criminal record even after it's expunged.

The expungment process

Specific processes for expungement will vary from state to state as each state dictates their own expungment laws. A good first step would be to obtain a copy of your criminal record to make sure you know the exact charge(s) that are on it. Usually you can obtain a copy of your criminal record from your local county courthouse or from your local police department. If this is not true for your area, those agencies should be able to direct you to the appropriate place to obtain that information.

After obtaining a copy of your record, you'll need to do some research on the specific expungement statutes and processes in your area. A quick Google search should provide you with results. Paperwork will have to be filed with the court and then a court date will be scheduled. However, don't be fooled into thinking it's a quick and easy process. It is generally advisable to get a lawyer representation as it will increase your chances of success.

In general it is easier to get an older conviction expunged as opposed to a more recent one. The likelihood that an expungement is granted will also depend on the type and severity of the conviction. You will increase your chances for success if you can show life changes that have occurred since you were charged with the crime. For example, if you were charged with a drug related charge 10 years ago but have since successfully completed treatment and have remained sober since then, you should include that information your petition. Make sure that your petition is thoroughly completed as some states have time limits imposed regarding how long you have to wait to re-petition the court.

If you need to consult a lawyer over a record expungement, please contact. http://www.eLawsuit.com

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Advance Directives: A Need for All Ages

Emergencies or a health care crisis can happen at any time, and the time to think about how you would want your medical care is now.

What does a Notary Public Do?

Learn what a Notary Public does in this video.

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Living Wills Review: Five Reasons Why You Must Have A Living Will

Living wills and advance directives have lately become the hot topic of discussion with the case of the brain-dead pregnant women in Texas going to the courts to decide. While her individual rights versus Texas state law makes for a heated debate, the real question for most Americans and Canadians should be 'What happens if you don't have a living will and the unthinkable happens?'

Every year, thousands of people have an unfortunate accident that leaves them in an incapacitated state. This is where a living will comes into play. A living will, which can also be known as an advance health care directive or advance directive, is a set of instructions given by you, allowing for what types of medical intervention and treatment you would like to receive, if you are in a state of mind where you cannot make decisions for yourself. If you don't have a living will, you leave these decisions to someone else. So, there by itself, is the number one reason for having a living will. Now let's break down the other 4 major reasons why you should have a living will:

2. Avoid Family Fighting. Imagine what not having a living will could do to your family. If you haven't made the medical decisions that are usually addressed in a living will, depending on your state or province, often times it is left up to your family to make these pain staking decisions for you. Imagine your spouse having to decide whether or not to keep you on life support. Now imagine your mother, or brother, disagreeing with their decision. The emotional toll this can take on a family could be devastating. The case of Terri Schvaio often comes to mind. Back in 1990 she collapsed and fell into a coma for more than two months, and then was declared to be in a vegetative state. Years later, her husband made the decision, against her parents' wishes, to have her removed from a feeding tube. The argument went on for seven years. You can imagine the emotional toll your family would suffer in a similar situation.

3. The Medical Costs. In some cases when a person is incapacitated, the prolonged period of keeping a patient alive can outlast the medical insurance, leaving the extra costs to be paid by the patient's estate. Many times, when the decision is made by the spouse, or other family member, to artificially extend one's life, the medical costs involved can cause an extreme financial burden. It is not unheard of for families to end up losing everything because of this. If you were incapacitated, could you imagine your family losing their home, or possibly facing medical bankruptcy?

4. The Legal Costs. All it takes is for two family members to disagree and here comes the lawyers. This happens in many cases, like Terri Schvaio's, where lawyers for the disagreeing parties spend weeks, months, and even years, arguing for their side, all the while the costs are adding up. And eventually someone will have to pay those bills. Imagine the life insurance you left to protect your family, ending up in the hands of attorneys, all because no one knew what your wishes were. These situations happen all too often. You having a living will can avoid a catastrophe like this.

5. Peace of Mind. Simply put, when you have a living will, you are more likely to have the peace of mind of knowing that your wishes will be known, and that family members won't have to fret over whether or not they made the right decision. It is perhaps one of the most responsible, unselfish acts you can take by keeping the heart wrenching decisions out of the hands of your loved ones. If the unthinkable were to happen to you, there would be no reason to compound your family's suffering.

Now that you have the five major reasons to get your living will, you have to decide what to include in it. There are many points to consider, like if you should appoint a medical power of attorney (POA), where you would designate someone you trust to make decisions that may not have been covered in your living will, or adding a 'do not resuscitate' directive. These are some of the many items you will want to discuss with your family. Also consult your attorney for advice on your state's laws when drafting a living will.

I heard it said that having a will is like writing a final love letter to your loved ones to assure they get everything you want them to have. When you think of it in these terms, a living will would be an extension of that love letter, preventing unnecessary pain and hardships for your family, just in case you were to experience an incapacitated state for any length of time.

Gerard Cassagnol is a professional writer and has written several articles on legal issues of the day. He is an advocate for affordable legal representation and coverage in the USA and Canada. He has had a legal plan membership for over 15 years, and is now a marketer of legal plans and identity theft plans for individuals, families, and small businesses.
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