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Wills And Probate

Part of preparing for the time when an individual dies is estate planning. Included in estate planning is the creation of a last will and testament, a written and legal expression under which the individual determines what should be done to his properties when he dies. An individual executed a will before he died is said to have died "testate," while an individual who died without leaving a will prior to his death is said to have died "intestate." Leaving a will is not a guarantee that the distribution of the individual's properties will be smooth following his death as a will can be, and, is often, challenged. Probate is the legal process of administering the deceased person's estates, resolving claims against the deceased person's estate, and distributing the deceased person's properties.

Probate begins with the filing of a petition by an heir, creditor, or an interested party, asking the court for a right to settle an estate. The petition must be filed where the deceased owned a property. If the deceased owned properties in other areas, then petitions must be filed in each of the areas where the properties are located. The petition must name the heirs of the deceased, their relationship, and their residence. When the deceased died testate, the will be taken to court, probed of its authenticity, and recorded in the book of register kept by the clerk of court. After this, the court appoints an executor or administrator to settle the estate. An executor is named when the deceased died testate, while an administrator is named when the deceased died intestate. An administrator is required to post a bond with the court to ensure that he can properly complete his duties. Following the appointment of either executor or administrator, an appraiser will be called in to assess the value of the deceased's properties. During probate, the executor or administrator may sell some of the properties of the estate to settle the deceased's unpaid debts. Heirs, creditors and interested parties may challenge the will by asserting that they are entitled to more than what is indicated in the will. The court will then decide which of these claims are valid. Potential creditors are notified of probate proceedings as there is also a statute of limitations for the filing of claims. Failure to timely file claims may lead to their extinguishment. Child custody may also be included during probate when the deceased person left behind minor or incapacitated children.

Issues on inheritance is settled by state law, thus, rules and regulations vary differently from state to state. In cases where the individual owns properties in different states, it is imperative to seek the assistance of an expert attorney to determine the laws that would apply to the properties, especially on the areas of taxation. The federal government has attempted unify the often conflicting state probate laws by enacting the Uniform Probate Code. Not all states, however, have adopted the Code, so the issues arising from probate are still difficult to tackle without the help of expert probate laws attorney.

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