The Difference Between Estate Planning & Probate Law

If you’ve previously prepared for your future, you may have been told of the terms estate planning and probate law. There are two primary distinctions between estate planning and probate law: timing and process.

Estate planning is putting together a financial plan that will feature records like a will and regulate your estate after your death or incapacitation. Probate is the act of producing an official will or trust that is enforceable in court.

Probate Law

Probate Administration Attorneys will sometimes use the term “probate” as an umbrella term. An instance would be using “probate” to relate to anything aside from the validation of a will, like “probate” court or “probate” assets. Probate could also refer to the administration of a will or trust.

The process of creating an enforceable will comes about in probate court. A judge will usually hold a hearing to determine whether or not the will stands. The custodian, or executor of the will, will bring his or her document to the hearing. Preparation for validating a will usually involves the executor’s signing and notarizing by a witness. When required, the custodian can also come prepared with witness signatures or affirm the validity of the will under oath.

If a person dies without a will specifying how to distribute their probate assets, it will be up to the judge to rule on the process of distribution. For example. if they didn’t leave instructions on what to do with any property, there is a probate sale. “Probate assets” refer to anything the decedent owned or partly owned but did not account for in their will dealing with assets. There are some assets that do not relate to a probate process, like a life insurance policy. A life insurance policy would be owed upon death to a named beneficiary. A probate administration attorney can help you determine which assets are probate and which are not.

To wrap up, the process of probate is conducted through surrogate court. How to distribute your property after you have deceased is decided in probate court. Having a will that is confirmed before passing will assist with this process. Some assets may be distributed to heirs, or if there is no will, laws of intestacy will apply. The assets to become distributed in a will are referred to as “probate assets”, which were previously owned by the deceased. Probate assets require a court of probate order to pass the title. Probate assets can include:

  • Real estate property
  • Bank accounts
  • Cars, watercrafts or any other vehicle
  • Personal property (e.g. watches, appliances, etc)
  • Interests in a corporation, LLC, or partnership
  • Brokerage accounts or Life insurance policies

Ultimately the court will determine and gather probate assets for distribution. The court will receive the first cut in costs, followed by any existing creditors, and finally the decedent’s beneficiaries.

Probate court processes may be well-timed. The court will need to contact all individuals with any interest in the estate. A smart probate administration attorney can help prevent any problems by giving proper legal counsel during the estate planning process.

Estate Planning

An estate planning lawyer is essential for guidance and counsel during estate planning. There are many laws and rules pertaining to the creation of a will or trust. Thusly, an estate planning attorney who recognizes with the law can help you interpret and properly create a will or trust that is enforceable in court. Given that every individual’s estate is unique, it’s best to seek expert legal advice regarding the estate planning process.

Anything that you own, including debts, is considered part of your estate. Most individuals, and especially those with family, will wish to entrust their assets to be dispersed after their death. Through a will or trust, you have the ability to appoint assets to specific member of the family or heirs. An estate planning attorney can help you implement this plan so that the family is taken care of after you are gone. You will want to know that after grieving a loss, your family will not have the extra stress of taking care of the estate legalities. The estate planning attorney can help you analyze taxes on the estate and any fees associated with the processing of the estate, in addition to legal fees.

Estate planning also governs how your desires will be met in certain situations. Planning the terms of your healthcare you’ll receive in the event of impairment or incapacitation falls under estate planning. A living will can speak to whether you want to be kept on life support or if you want your loved ones to attempt to resuscitate you if you die (also known as a DNR order).

If you plan to set aside money for someone who can not take care of themselves, this would also be specified in the estate plan. An estate planning attorney can help you structure your plan to ensure that the person of interest can obtain government benefits while also receiving your assets.

To evaluate, a will or trust has control over distributing probate assets of a decedent. However, a will does not have jurisdiction over non-probate property and its distribution. This is where estate planning becomes important. Certain assets sidestep probate court and go directly to the recipients of the decedent. Non-probate assets can include:.

  • Property held in joint tenancy
  • Property that is in the name of a trust
  • Bank accounts in joint names or Brokerage
  • Vehicles held in joint names
  • Life insurance accounts to others
  • Others Retirement accounts

Everyone has an estate, no matter how large or small. It can include all of your properties, real estate, cars, checking accounts, savings accounts, and even debts. Estate planning is the process of making an outline prior to your death and naming those who will receive your possessions after you are gone. It will also include:.

  • Instructions for your care if you become disabled or handicapped before death
  • Naming a guardian or representative for minors
  • Care instructions and providing for loved ones through life insurance and/or disability income
  • Minimize legal fees, taxes, or court costs
  • Any other instructions for passing along valuables and values

In sum, planning your will after you are gone is important. It is especially important to distinguish which assets are probate and which are non-probate. Only then can you take the appropriate action to transfer your property accordingly after you are gone. Planning for the after-effects of your future after you are gone is not easy, nor one that many people look forward to doing. But having a skilled and knowledgeable attorney can help make sure the process is carried out accurately.

St Petersburg Estate Planning & Probate Attorney
5858 Central Ave, suite d.
St Petersburg, FL 33707
( 727) 381-2300

Riverview Estate Planning & Probate Attorney
12953 US-301 # 102d
Riverview, FL 33578
( 813) 639-8111