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A handy, informative guide for those who want to avoid the expense, trouble,
and delay of probate in settling an estate. What has to be done so that your
estate will not have to be taken to court. The procedures involved in settling
an estate without probate.
Detailed Table of Contents:
Introduction
Deciding Whether
to Avoid Probate
The Two Phases of Avoiding
Probate
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The
need to understand the basic principles of estate planning
The two phases of avoiding probate
The importance of making a decision whether to avoid probate
Deciding whether to plan to avoid probate
Need to understand what "probate" is
Avoiding probate by lack of planning
Avoiding probate by putting entire estate in nonprobate assets
The sound basis for avoiding probate - Careful planning
The basic reason an estate must be probated
An important reason probate is required
Deciding whether to plan one' estate to avoid probate
Factors that make avoiding probate difficult or impossible
Taking steps to qualify one's estate for avoiding probate
The second phase of "avoiding probate" |
The Laws That Apply
to Avoiding Probate
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The
decedent's residence or domicil
Finding a copy of your state's Probate Act |
What Probate Is About
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The
meaning of "probate"
The probate process
Probating a will
Modern probate procedures
Establishing a decedent's "heirs at law"
Probating an estate where there is no valid will
Appointing an executor or administrator
The bond of the executor or administrator
The right of "interested persons" to be notified
Collecting and handling the decedent's assets
Paying the decedent's taxes and other debts
Making distribution and reporting to beneficiaries |
The Disadvantages of
Probate
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What
it means to "avoid probate"
The disadvantages of probating an estate
Delays caused by probating an estate
The legal battles that can be involved in the probate process |
The Benefits of Probate
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The
often overlooked benefits from probating an estate
Probate bars decedent's debts quickly
The important protections given by probate to creditors and beneficiaries
The importance of having a judge to settle disputes |
Making the Decision
to Avoid Probate
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The
need to make the decision now
The need for full understanding before making the decision
Will an attorney be needed?
How difficult will the problems of settlement be?
Complex problems can arise in very small estates
When disputes in settling the estate seem likely
The importance of a valid will |
Preparing to Avoid Probate
Through the Use of a Comprehensive Living Trust
With a Pourover Will
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The
need for careful preparation to assure avoidance of probate
The need for a fully operative Comprehensive Living Trust
A vital concern - Funding your trust |
Settling an Estate
Without Probate
The Procedures Required
to Settle an Estate Without Probate
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The
first phase of the avoidance of probate
The second phase of the avoidance of probate
The steps involved in settling an estate "without probate" |
Using an Estate Agent
or Trustee to Settle the Estate
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Selecting
an "Estate Agent"
The need for cooperation in avoiding probate
Dealing with the other family members |
The Duties of the Estate
Agent
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The
Estate Agent's fiduciary obligations
When the Estate Agent is also trustee under a living trust
If you have to "change horses in the middle of the stream" |
The Agreement to Settle
Estate Without Probate
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The
advisability of having an agreement by all interested persons
The agreement of all interested parties |
The Small Estate Affidavit
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The
Small Estate procedures under a Small Estate Act
The requirements imposed on a Small Estate Act
The responsibilities imposed on the person who signs the Affidavit
Additional requirements in preparing a Small Estate Affidavit |
Using a Small Estate
Affidavit
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Using
the Affidavit in place of letters of office
Other forms that could be required |
Powers of Attorney
to Sell Estate Assets
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The
nature of powers of attorney for property
Obtaining authority to act from the interested people
Obtaining authority to sell a decedent's property |
Actions Required When
a Person Dies
What Must Be Done When
a Person Dies
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The
decedent's property
Finding the decedent's last will
Matters demanding immediate attention
Simultaneous deaths |
Handing the Decedent's
Funeral
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Funeral
arrangements
Place of burial
Payment of funeral expenses
Paying the funeral bill if there isn't enough money in the estate
The cost of the funeral
If public aid is needed to help with the funeral bill |
Deciding Whether You
Need a Lawyer
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Determining
whether a lawyer will be necessary
Situations that will require a lawyer's help
The extra effort required if there is no lawyer
Can you get legal assistance if you can't afford it?
Getting a lawyer if the job proves too much |
Gathering
Information - Necessary Records
Assembling
the Necessary Information
If
the Decedent Had
a Will
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Deciding
whether a "will" is valid
Study the provisions of the will carefully
Possible will contest |
Initial
Steps by Trustee or Estate Agent
The Importance of the
Decedent's Heirship
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What
happens when a person dies without a will
The rights of heirs when there is a valid will
The need to know the heirs, even when probate is avoided
The importance of "per stirpes" vs. "per capita" distributions
Establishing more remote relatives as heirs
Procedures when all heirs can't be found
Problems relating to illegitimacy and adoption |
Making Funds Available
Quickly
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Ways
to make cash available quickly
Use of funds from nonprobate assets to provide quick cash
Loans from beneficiaries to provide quick cash |
Keeping Necessary Records
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Of
the Estate Agent is also trustee under a living trust
Opening an estate checking account
Preparing and keeping record of cash receipts and disbursements
Making a record of cash receipts and disbursements
Preserving other important documents |
Finding and Protecting
All the Estate Assets
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Finding
all the decedent's assets
Importance of taking charge of decedent's property
Problems in securing the decedent's property
Importance of finding and checking insurance policies
Preventing real estate losses
Special problems in finding all the estate
Obtaining the contents of all safe deposit boxes
Clues for finding elusive assets
Checking for assets in the possession of others
Learning about loans made by the decedent |
Obtaining the Contents
of the Decedent's Safe-Deposit Box
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The
right to contents of safe deposit boxes
Getting consent of bank to control bank box
Procedures for getting permission to remove box contents
The affidavit required to get in the bank box |
Opening a Checking Account
for the Estate
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The
checking account of the estate
Handling and depositing cash receipts
Keeping estate assets separated from personal assets |
The Importance of Nonprobate
Assets
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The
difference between probate and nonprobate assets
The kinds of nonprobate assets
The effect of the death of the beneficiary of a nonprobate asset
The impact of the beneficiary's death on an estate plan
Inability of testator to give a nonprobate asset in the will
Nonprobate assets as a shield against decedent's debts
The estate's interest in nonprobate assets
The transfer of nonprobate assets to the new owner
Determining the exact ownership of decedent's assets |
If the Decedent Had
a Guardian
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The
estate's relations with the decedent's guardian
Working with the decedent's guardian
Distribution of estate by guardian |
Dealing
With the Decedent's Property
Liquidating Estate Assets
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The
need for cash to pay debts and other purposes
The dangers from paying money too soon
Studying the assets to determine what to liquidate |
Dealing With the Decedent's
Automobile
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Be
sure the car is insured before driving it
Transferring the title to decedent's auto
Documents required to transfer title to a car
If you can't find the title |
Dealing With the Decedent's
Other Personal Property
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Transferring
different kinds of personal property
Deciding what is to be done with each asset
Determining who is entitled to specific assets
Classifying tangible personal property in the decedent's residence
Liquidating personal property at auction
Being prepared to deliver documents to transferees |
Dealing With the Decedent's
Real Estate
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Right
to possession of real estate
Making merchantable title to the decedent's real estate
Getting title into a new owner
The insurance on the real estate
Need to use real estate to pay debts
Appraisal of real estate |
Dealing With the Decedent's
Business Interests
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Only
smaller businesses can escape probate
Making an effort to sell a business as a"going" business
Disposing of a partnership interest
Disposing of a closely held corporation
Transferring the decedent's stock certificates |
Investing Estate Funds
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Special
problems investing estate funds when probate is avoided
Avoiding potential losses by working efficiently
Avoiding liability for losses |
Dealing
With the Decedent's Debts and Obligations
Handling the Decedent's
Debts
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Arranging
to pay decedent's debts
Some creditors are entitled to preference
Payments of Public Aid claims
Potential liability for legal claims
Liability for wife or child support, restitution, etc.
When it appears that some creditor(s) may not be paid in full
How claims are sorted out in probate process
Switching to probate if the estate is insolvent
Setting disputed claims
Need for great caution in paying claims |
Dealing With the Decedent's
Taxes
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Your
responsibility for paying taxes
Checking the decedent's recent tax returns
Preparing the final tax returns
The need to file a fiduciary income
State tax returns due |
Dealing
With Benefits
Dealing with the
Decedent's Life Insurance and Annuities
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The
benefits of life insurance in settling estate without probate
Life insurance is not normally an estate asset
Obtaining proceeds of policy payable to estate |
Obtaining Other
Benefits Due the Estate and Others
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Other
benefits that are payable to the estate
When decedent's death was caused by another person
Helping beneficiaries obtain payments |
Dealing With the
Decedent's Social Security
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Actions
to take relative to Social Security
Social Security benefits for the surviving spouse
Dependents benefits from Social Security
Survivors benefits from Social Security |
Dealing With the
Decedent's Medical Benefits
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Difficulty
in avoiding probate if there are unpaid bills
Need to investigate carefully the complex billings |
Protecting
Benefits of Spouse and Children
The Surviving Spouse's
Benefits
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The
surviving spouse's right to "renounce" a will
The surviving spouse's right to a "spouse award"
The surviving spouse's right to "homestead" in the residue
The surviving spouse's right to the household chattels
The surviving spouse's right to various nonprobate assets |
Protecting the Interests
of the Decedent's Children
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The
best protection for children usually from leaving property to
surviving parent
Selecting a testamentary guardian
The kinds of guardians
Helping children recover their benefits |
Distributing
Estate to Persons Entitled Thereto
Distributing What
Is Left After Bills Are Paid
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Proving
a cash reserve
Distribution in kind
Distribution where there is no will
Determining the heirs' shares of the estate
Distributing the estate where there is a Pourover Will
Distribution where there is a will |
Reporting to the
Heirs or Will Beneficiaries
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Reporting
to the beneficiaries
When you have liquidated the estate and paid all bills
Your report and account |
Forms
Estate Information
Sheet
Receipts and Disbursements
Inventory of Estate Assets
Access to Safe-Deposit Box
Bill of Sale
Record of Claims
Receipt of Beneficiary
Example of Covering Letter
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