Law Foundation Blog

Business and Family Law Issues

Law Foundation Blog - Business and Family Law Issues

Understanding the probate process

Probate process is a legal process where the property of the deceased person is distributed in accordance to his last will and testament. The probate process is applicable even if the will is invalid. The only difference is that, without a valid will the laws of the state where you live specify who gets what parts of your estate. The probate process shall start by the determining the assets and liabilities of the testator. Once it is determined, the debts incurred by the deceased including unpaid taxes shall be deducted to the portion of the inheritance. Next, the assets of the testator shall be divided to his or her beneficiaries.

There are several things that are involved in a probate proceeding, this includes the following:

  • Proving that the will is valid;
  • Appointing a legal representative;
  • Taking inventory and appraising the decedent’s property;
  • Paying Debts and taxes; and
  • Distributing the property in accordance to the terms of the will.

The cost of the probate proceeding is different from state to state and province to province. Usually the average is ranging between 0.5% and 2% of your estate. But that is not all, there are more costs associated with distributing your assets, some other costs are executor and attorney fees, executor fees can range up to 4%. Then there are always taxes your estate will have to pay before transferring assets. The length of the probate proceedings depends on the complexity, clarity and sense of the will. More so, the size of the estates is also a factor for the length of time of the probate proceedings. The larger and complicated the estate the longer it will take to settle. Often times, it takes 1-2 years to be fully settled without any complications. If you want a speed up process it is recommended that your will must be valid and updated.

Non -contested Divorce

A non-contested divorce is a marital breakup that is resolved or proceeding by default, which happens when the defendant fails to respond to the issues alleged in the complaint.  This divorce is said to be the easiest way to end a marriage. It Is not as stressful or costly as a contested divorce and can be completed in only two weeks or so, in some states. To make this happen you and your spouse must negotiate a resolution of all your issues on your own without any involvement of the court.

Know the basic steps for a non-contested divorce in order to avoid  court hassle, the steps are as follows:

1. Complete a petition for divorce- a petition for divorce form is the submission of both parties to the jurisdiction of the court.

2. Establish your assets- you need to make a list that enumerates all your assets and liabilities which may includes your plan of dividing them. This is where you should also outline any child support or alimony. Both parties must negotiate with regards to the asset in order to reach a satisfying agreement for both sides.

3. Know the residency requirements-each states have different divorce laws, it is best that you know the residency requirements in filing a divorce paper. You must be able to prove that you have resided in the state for the minimum length of time to obtain your Certificate of Corroborating Witness in order to assert your length of residency.

4. File the petition- file the petition for divorce together with the financial records to the local court. After filing, you will be given a Notice of Hearing form that formally requests a judge to hear your divorce case. If one party cannot attend the hearing, you may ask the clerk of court if it is possible to use an Answer and Affidavit form instead. This shall be given to the other spouse to fill out and return before the date of the hearing.

5. Complete a settlement agreement form- this is said to be the heart of divorce. It is a form where every details of divorce is indicated which include the distribution of assets, custody of the children and settlement of other post-marital issues. Hence, this form is returned to the court to proceed with the divorce process.

6. Wait for a divorce decree- it is a signed document from the judge that finalizes your divorce. It is important for you to have copies of the decree from the court for future references.

 

The Importance of Making a Will

In legal terms, a will is a written instrument by which a person, the testator, names one or more persons to manage his or her estate and provides for the distribution of his property at death. For the devolution of property not disposed of by will, see inheritance and intestacy. The requirements for making a will shall depend on the state where the testator is residing and to where the real property is situated. If a married person dies without a will, the inheritance shall be divided with the deceased person’s spouse and children. However, if a single person dies, his or her assets shall be inherited by the surviving parents (if still alive) or collateral relative like brother or sister. Hence, every intestate succession shall comply with the laws of the specific state where the deceased reside and where the property is situated.

It is important for a person to make a will. It is a way making an assurance for the bright future of your children. It is also a way of appointing an executor to handle your affairs when you are gone. You can also dictate who shall receive or not receive anything from your estate. By writing a will, you also avoid leaving your loved ones with costly issues and complications at a time when they will already be experiencing difficulty and distress. The will shall also gives you the assurance on how your appointed administrator shall handle your affairs in accordance to your given instructions indicated in the will itself.

Any person can make a will. Provided that they are 18 years of age and have legal capacity, you can make a Will. You can also make a Will if you are under 18 years of age and are married, or with consent from the court. To have legal capacity to make a Will you need to understand what a Will is and what it does, what property you own, who is important to you, be able to consider any claims that may be made against the estate, and be of sound mind.

It will always be best to consult a legal advice of an attorney because Estate law is complicated. The modern family and the relationships between its members are also complex. The best way to ensure your wishes are carried out in the way you intend them is to have a legally sound Will. Legal professionals who specialise in estate law can help you write a clear Will that is up-to-date with current legal and case law.