Frequently Asked Questions About Wills and Trusts

If you have questions about wills, trusts, probate or other estate planning matters, contact our firm to speak with a knowledgeable estate planning attorney.

Thank you for contacting Law Offices of Nicholas P. Barone. Your message has been sent.

Call us now

or use the form below.

Frequently Asked Questions About Wills and Trusts

Q: What is probate?

A: Probate is a court process to determine the validity of a will. In a situation where this is no will, probate allows the court to direct the distribution of a person's assets in accordance with the state's intestacy laws.

Q: What assets will be included in my probate estate?

A: The probate estate consists of assets owned by a person at the time of his or her death. Common examples of probate estate assets are property to which the deceased person holds title; personal property such as collections, antiques and cars; proceeds from life insurance policies, trusts, annuities and/or retirement plans payable to the estate; and stocks, bonds or other investments.

Q: Where does probate take place?

A: Probate is a court-supervised process that takes place in probate or surrogate court in the county that was a deceased person's legal residence at the time of death.

Q: Can anyone find out what I owned if I my estate goes through probate?

A: Probate is a public process. There is little to no privacy regarding the details of a person's will, outstanding debts and assets.

Q: Do I need a lawyer to draft my will or trust?

A: While having a lawyer is not required, it is a good idea to consult with an experienced estate planning attorney. Certain formalities must be followed when making a will or drafting a trust. Failure to follow those formalities can cause inconvenience, additional costs or even invalidation of the will or trust. In addition, there are often complex tax issues to consider when designing your estate plan. An experienced attorney can help you sort through these issues and make the right decisions for you, your estate and your heirs.

Q: How do I choose a guardian for my children?

A: A guardian should be an adult whom you trust to raise your children until they reach the age of majority (usually age 18). Guardians are legally responsible for the physical care, health, education and welfare of the child or children under their supervision. You should ensure that there are adequate funds available to meet these needs, either through your will, trust or other estate planning tool.

Q: What is the difference between a durable power of attorney and a conservatorship or guardianship?

A: The main difference between a durable power of attorney and a conservatorship or guardianship has to do with the ability to decide who is in control when a person is incapacitated. With a durable power of attorney, a specific person is named to take over a person's affairs and to act on that person's behalf should he or she become incapacitated. This person is known as an attorney in fact and does not have to wait for a person to be declared incapacitated before he or she can act under the durable power of attorney. In most states, a guardian is charged with caring for both a person and his or her property whereas a conservator is responsible only for a person's property and money. A conservator and guardian are both appointed by the court after a hearing to determine a person's incapacity.

Q: What will happen if I die without a will?

A: When a person dies without a will, his or her estate will go through intestacy proceedings in probate court. The purpose of the intestacy proceedings is to determine how to distribute a person's estate in accordance with the state's intestacy laws. Generally, the surviving spouse and children receive the majority of assets, but parents and siblings of the deceased person also may be entitled to a share.

Copyright © 2016 FindLaw, part of Thomson Reuters

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Back to Main