Many have heard that it’s wise to avoid probate, but few know the reasons why. Probate is the legal process of proving a will, determining heirs and distributing the property of a decedent.
Every adult, wealthy or not, should have a valid will or a living trust in place. Yet, more than half of Americans are unprepared for the inevitable. A last will and testament is a legal document that outlines where and whom your property will pass to after death. Another option is a living trust. A trust also says how you want your assets distributed, but also helps distribute your assets faster, avoids probate, may help avoid unnecessary taxes and keeps your wishes private.
Probate is the legal process of proving the will and determining heirs. An estate executor or attorney representing the estate will initiate the process. From there, the court will validate the will, authorizing the executor to distribute assets to beneficiaries as instructed in the will as well as pay any creditors or taxes the estate may owe.
Most people don’t know a lot about wills, trusts or probate. After all, they’re not exactly topics you’d discuss at the dinner table. However, each of these documents plays a role in how you plan to distribute your assets. It’s important to know the basics. Not just for knowledge sake, but so that you’ll know enough to recognize common myths as you run across them.
Millennials are often smart, ambitious, innovative people who focus on career building. If you are a member of this group, estate planning may be the furthest thing from your mind.
When left without a will or a trust, the property of a decedent will only be distributed once a Final Decree has been ordered by the Court.
Time, title, possession, ownership interest. The four elements of joint tenancy have endured throughout real property ownership law and create the most efficient way to transfer property to loved ones.
When real property owners want to transfer surface real estate or minerals to their heirs through a trust, there are several common problems a title examiner will find. Sometimes, the owners make the mistake of conveying property to the individual Trustee, instead of to the Trustee in his or her capacity as Trustee of the named trust. Other times, the property owner conveys the property directly to the trust and fails to file a memorandum of trust listing all the property to be transferred. Finally, property owners often try to combine a memorandum of trust and a conveyance into a single document. These problems can create problems with title to the real property, referred to as a cloud on title, and often result in costly and undue litigation and delays on royalty payments to mineral owners.
In a previous post, we discussed H.R. 2606, the bill that amends the Act of August 4, 1947 (61 Stat. 731) (commonly known as the Stigler Act). The Stigler Act governs restrictions upon alienation of surface and mineral interests in lands inherited by lineal descendants by blood of allottees of the "Five Civilized Tribes." The Five Tribes were forcibly removed to Indian Territory, and resettled on lands located within the geographical boundaries of what is now the State of Oklahoma.