Generally, a Will and a Revocable Living Trust is the most useful estate plan structure. It’s relatively simple, easy to modify, and structured to handle change.
There are many situations which are more complex, such as planning for disabled individuals and/or minors, and there are a number of plans and possibilities that can handle those situations.
The documents that I generally prepare are:
The function of Probate Court, for an estate, is to transfer title. That’s really what it does, pushing aside all the discussions about Probate Court. This isn’t bad: the prior system was that the largest person in the room got what they wanted, which has obvious disadvantages.
There are worse things than Probate Court, although Probate court isn’t commonly praised. Where there are family disputes, perhaps untrustworthy behavior by some family members, Probate Court is a public and transparent process, giving notice to everyone. That’s the good side.
The bad side is that probate is slow and expensive. Still, there are times when it is necessary. First, if you want an objective party to administer your estate because you don’t have anyone you want to put the burden on – or can trust. If there is family discord, appointing one of the children to be a trustee can be a curse, increasing the battling. Probate Court does provide a buffer if needed.
Second, where assets pop up – they were never retitled or never had a beneficiary, Probate Court is the only choice.
Probate Court is where one goes to get a guardianship over someone who isn’t competent to handle their own business. A guardianship is power over the person; a conservatorship is power over the person’s assets. They are two different processes, although generally linked, and subject to different tests and requirements.
Generally, a guardianship is appropriate where an elderly individual has lost their mental ability. In the typical situation, two physicians provide documentation that the individual is no longer competent. A petition is filed with the court; a representative for the person alleged to be incompetent is appointed by the court, who talks to the person and reviews the physicians statements. The Court reviews the evidence, and makes a decision. Annual accountings have to be filed.
A guardianship can also be appropriate for accidents or life events that impair people’s abilities, but which they can recover from. There are full guardianships and partial guardianships to handle the complexity that the world can throw at us.
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