Estate Planning, Wills, Trusts, and Probate
What is probate?
Probate is the process by which a court oversees the distribution of assets of a decedent or an incompetent person. A decedent is someone who has passed away. An incompetent person is someone who has been found unable to handle their affairs by the probate court. The probate process deals with to assets held in the individual's name alone. It does not apply to property held jointly with another, contract assets, such as life insurance or retirement assets which have a beneficiary designate, or property held in trust.
When dealing with an incompetent person's estate:
Guardianship and Conservatorship:
A guardianship or conservatorship is a legal system by the Probate Court that bestows upon an individual the legal power to make decisions for another individual who is incapable of making decisions for him or herself.
A guardianship involves the appointment of an individual (“Guardian”) to handle personal and custodial matters for an incapacitated person (“Ward”). Some of the primary responsibilities of a Guardian are:
(a) to decide where the Ward will live and
(b) to make provisions for the Ward’s care, comfort and maintenance, including medical and health care decisions.
If the Ward has money and/or property, a Guardian may also be appointed to manage this property including depositing checks and paying bills of the ward. A Guardian does not have authority to sell real estate without special court approval. They may also need court approval to manage large estates.
In order to provide the least restrictive alternative to the Ward, a guardianship must be limited to those areas where the Ward needs a substitute decision maker and not necessarily for all areas. This is to protect the civil rights of all Rhode Islanders.
When dealing with a decedent's estate:
Probate is the court-supervised process of locating and determining the value of the assets owned in the individual name of a deceased person, referred to as a "decedent," paying the decedent's final bills and estate taxes and/or inheritance taxes (if any), and then distributing what's left of the decedent's assets to his or her heirs.
The following are general steps involved in settling a decedent's estate:
Appointing a Personal Representative - Appointing a Personal Representative, also called an Executor or Administrator, to oversee the disposition of the estate;
Marshalling the decedent's assets - Locating and collecting all of the decedent's individually owned assets;
Date of death values - Figuring out the date of death values for all of the decedent's assets through account statements and appraisals;
Identifying known creditors - Locating all of the decedent's creditors and then notifying them of the decedent's death;
Publishing a notice in the newspaper - Publishing a notice in a local newspaper to notify any unknown creditors of the decedent's death.
Paying bills - Paying all of the decedent's final bills.
Determining estate tax liability - Determining if any estate taxes will be due, both at the state and federal levels;
Paying any estate taxes and/or inheritance taxes - If any estate taxes (federal and/or state) or inheritance taxes will be due, raising the cash necessary to pay the taxes and then paying them in a timely manner (usually within nine months of the decedent's date of death); and
Distributing the remaining balance to the beneficiaries - Distributing the balance of what's left of the decedent's assets after all of the bills and taxes have been paid to the beneficiaries named in the decedent's Last Will if the decedent had one, or to the decedent's heirs at law if the decedent didn't have a Last Will.