Wills, Trusts & Probate
How the personal belongings of a person are handled after death, and even in lifetime, is usually governed by one of the following devises: (1) will, (2) trust or (3) a probate action. In order to help you understand how each of these devices operates, I will provide a brief description of each below.
A will is a document that directs who will receive someone's property after that person has died. That person, known as the "testator", specifies in the will what particular items of his or her personal belongings is to be provided to another party, the "beneficiary". In the will, the testator appoints a person, known as an "executor" or "executrix", to carry out those wishes. Although drafted during the lifetime of the testator will only takes effect after the death of the testator.
A trust, on the other hand, is a legal arrangement through which a person, known as the "settlor" or "grnator", passes title to his or her personal belongings and effects to another person, known as a "trustee", to hold and manage said possession(s) on behalf of the settlor or another person known as the "beneficiary". The trustee can be an individual or an institution such as a bank or law firm. A trust, unlike a will, allows for the distribution of the settlor's possession(s) before death, at death or some point thereafter. Also, unlike a will, the provisions of a trust go into effect upon the document's creation.
Probate is the legal process through which the validity of a decedent's will, if any, is determined. It is the process during which all of the assests of the decedent are gathered, valued and distributed. The executor of the estate, who is appointed by the testator or appointed by the court, is tasked with carrying out the wishes of the testator, now known called the "decedent", pursuant to the terms of the will.
In the instance where a person dies without a will (or trust), known as "intestate", probate refers to the process through which the person's personal belongings and effects are passed pursuant to the rules of intestacy established by the state in which the person resided at the time of death. An adminitrator, who is appointed by the court, is tasked with gathering, valuing and distributing the personal belongings and effects of the decedent. This process is applicable to estates valued at more than $150,000.00.
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