Last Wills, Living Wills and What is Probate Actually

Written by Robert T. Nickerson

​A lot of people do have an idea that they should have some kind of general last will and testament in the worst-case scenario. But you’d be surprised by how many people will ask “how” their supposed to be used. Do will begin use before or after someone is deceased? When does Probate need to come in? By breaking down all of this, this can be used to create a more constructed estate plan. 
 
living will is a document that legally sets an individuals decisions for end-of-life choices. A last will and testament is a document that legally sets the wishes of an individual for how their assets (physical and financial) are to be used and/or divided among beneficiaries (the people that’ll inherit from the individual). 
 
A last will and testament can (and should!) also have arrangements in relations to children the individual may have, disabled loved ones that individuals were previously responsible for and even an individuals pets. Yes, you can leave out instructions for your beloved Fido knowing they’ll be taken care of.
 
Does a last will and testament play any part while one is still alive? The short answer is no with a but. What is the but? The but refers to, “…but it can help the rest of the family and even your attorney gain a better idea on what goals an individual had in mind for their property but are not able to communicate”.   
 
There are also a variety of parts that people play in a will, so lets go over those roles. A testator is the person creating the will. The beneficiaries is a person or a group of people that’ll receive one’s assets after death. The executor is the person responsible for the deceased’s estate until the assets are distributed or court action is closed. 
 
So what happens when someone passes away without a will or an estate plan? That’s when the court will come in and manage that person’s assets. Instead of an executor, the court appoints an administrator.  
 
Typically, a will is filed after one’s death. The laws vary from state to state, though the person that’s named the executor will be the one to go to the county clerks office (it has to be the one in the state and county where the individual had the will or estate plan created) and open a case.
 
The case to determine the distribution of assets is called a probate case. Additional probate cases may need to be filed if they had property in other states, but again, the rules apply depending on the state. Once a probate case is open, it’s recorded with the county clerk and it becomes public record.
 
Does everything a testator owned all end up distribute within probate? You’d be surprised, but no. Accounts under definite beneficiaries will typically transfer without trouble. Property that’s held jointly with another person may have a stipulation that’ll allow the other party to be the sole owner.
Any property that was in the original name without a named survivorship will ultimately end up as a part of a probate case. 
 
This happens because once a person dies, without a designated beneficiary, there is no living person that has any legal right to transfer any assets. Therefore, the court must determine and make a ruling on who the rightful owners are. Creditors can even step in and make a claim of money the individual had owned them before. If the court sees them as valid, the estate may have to pay them before beneficiaries can receive assets. 
 
If no will was created for an individual, then a probate case still needs to be filed. The difference is that the court will be following default laws of that state in relation to who receives the property and how. An administrator or an executor isn’t able to act until the probate case has been opened.
 
Understanding what wills do and how probate can affect ones assets and beneficiaries is a proper step in establishing a full estate plan. The next step is to talk to an attorney into drafting those documents. The Law Offices of Jeffery C. Nickerson is committed to helping families and guiding through the process in a simple way. Contact us by clicking on the button below for more information. 

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