You have heard about family court, criminal court, and other courts that handle certain types of cases. The probate court has jurisdiction over estate matters and guardianship proceedings.
When you hear the term “guardianship,” you may think about guardians for minor children. This is one form of guardianship, but guardians are also appointed to act on behalf of incapacitated adults.
If you use a will to express your final wishes, you would name an executor in the document to act as the administrator. The executor would admit the will to probate, and the court would provide supervision during the administration process.
A notice is posted to inform creditors about the passing of the decedent, and final debts are paid during probate. The assets are identified, inventoried, and prepared for distribution to the heirs, and the court will examine the will to confirm its validity.
When someone passes away without a will, a court appointed personal representative will act as the administrator, and they would have the same responsibilities.
The assets are distributed when the estate has been probated and closed by the court. Obviously, when a will is used, the wishes of the decedent are honored. When there is no will, the assets are distributed under the Vermont intestate succession statutes.
Uniform Probate Code
At the beginning of the 1960s, probate laws in each state were different, and the statutes were outdated in many cases. The process was inefficient, and the legal community recognized the fact that action was required.
In 1963, work began on the Uniform Probate Code, and in 1969, the initial completed version was released. It was created by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the Probate and Trust Law Section of the American Bar Association.
They envisioned all 50 states using the UPC, but it has never been universally embraced. The Uniform Probate Code was amended in 1990, and at this point, 18 states are using it in its entirety. Vermont is not one of them, but most states use some portion of the UPC.
Probate serves a purpose, but there is no getting around the fact that it comes with some drawbacks that negatively impact the rightful heirs to an estate. It will take eight or nine months to a year in most jurisdictions, and no inheritances can be distributed during this period.
Privacy is lost, because probate records are available to the general public. There are a number of expenses that accumulate as well, and these expenditures reduce the value of the estate.
We should point out the fact that some types of transfers are not subject to probate. A payable on death account is a bank or brokerage account with a beneficiary. After the death of the account holder, the beneficiary would inherit the account, and the court would not be involved.
Property that is held in joint tenancy is transferred outside of probate, and life insurance proceeds are transferred in a probate-free manner. Transfers to individual retirement account beneficiaries fit into this category as well.
You can proactively implement a probate avoidance strategy when you are planning your estate. If you use a living trust, the trustee that you name in the document would be able to distribute the assets outside of probate.
This is one benefit, but there are many others, and you can learn about them if you check out this post.
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Now is the time for action if you are going through life without an estate plan. You can send us a message to set up a consultation appointment, and we can be reached by phone at 802-879-7133.