A separate body of property law deals with the disposition of property on death. This is the law of wills, intestate succession, and trusts. Much property is transferred between spouses or between generations on the death of the owner, or through planning mechanisms that anticipate the owner’s death, or is dedicated to charitable purposes on death or through trusts. When someone dies, his or her will is presented to the probate court and an executor is appointed to administer the person’s property, collecting amounts owed, paying debts, and disposing of the property as directed in the will. If the person has no will, the probate court will appoint an administrator to dispose of the person’s property. Probate can be a cumbersome process and, because it is administered by a court, it is public, so there has been something of a movement to avoid the process. If you need assistance making a will or setting up a trust, contact a Roseville estate planning attorney from the Thomas Hogan Law Office.

Wills

The rules of intestate succession are one-size-fits-all. A surviving spouse who was married to the decedent for fifty years and has no independent means of support is treated the same as a spouse who was only married for a day and has her or his own profession. Adult children, minor children, loving children, and estranged children all are treated the same. To avoid the intestacy laws and dispose of property in a different way, many people make wills. There also are at least two other reasons to make a will. First, if parents die with minor children, the children and their property have to be cared for. If both parents die, the court will appoint a guardian for the children, who may or may not be the person the parents would have chosen. In a will, a parent can appoint someone to be the guardian of minor children, and the court usually will confirm the choice. The rules of intestate succession are one-size-fits-all. A surviving spouse who was married to the decedent for fifty years and has no independent means of support is treated the same as a spouse who was only married for a day and has her or his own profession. Adult children, minor children, loving children, and estranged children all are treated the same. If you want to prevent your property from being distributed to one’s you don’t want to or you want to give your property to someone who is not covered by the rules of intestate succession, contact a Roseville estate planning attorney from the Thomas Hogan Law Office.

Trusts

A trust is a division of the bundle of rights in property in an unusual way. First, the management of the property is separated from the benefit of the property. The property is managed by a trustee, who usually has the authority to invest the property, collect income, rent, or sell, but who is paid a fee for its services, rather than receiving any income from the property itself. The beneficiary of the trust owns the right to receive the benefit from the property, such as the income it produces. Second, the beneficiary’s rights are defined when the trust is established by the grantor, the person who gives the property that becomes the principal (or corpus, meaning body) of the trust. The grantor can, for example, specify that the beneficiary can receive the income from the trust but no payments from principal, that one beneficiary receives the income for life and then the principal goes to someone else, or, in the case of charitable trusts, that the income should be devoted to seeking a cure for cancer or the care and feeding of stray cats. If you want to set up a trust for the management of your property, contact a Roseville estate planning attorney from the Thomas Hogan Law Office.

Probate

In probate court procedure, someone in possession of a will submits it for probate, to be accepted as the effective will. Someone else who believes that the will that is proffered should not be effective can challenge the will; the challenger will do this because they stand to take part of the estate, perhaps by intestate succession, if the will does not go into effect. Aside from a defect in form, the most common bases for challenging a will (which are still not very common) are because the testator lacked sufficient mental capacity to make a will or was subject to undue influence. Living trusts can be used to keep property out of probate, which minimizes publicity and may save fees, although the advantages of a living trust have been lessened by recent reforms in probate laws. Contact the Thomas Hogan Law Office for advice and assistance on using various estate planning tools to avoid probate.


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