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Filing a Will versus Opening Probate
Filing a will with the probate court and opening probate are separate actions. A will can be filed whether or not probate is needed. Probate is needed only under certain circumstances, such as when the decedent died owning probate assets. Some states require the filing of the decedent’s will with the court within a specified…
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Responsibilities of the Personal Representative
When creating a will, an important consideration is who to choose to serve as the personal representative (also called an executor) of your estate. The personal representative is responsible for carrying out the testator’s wishes. Their duties include locating and valuing assets of the estate, paying debts, and distributing assets to beneficiaries in accordance with…
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What Happens With Your Will When You Die?
Upon the death of the testator—the person who made the will—probate will be opened if the testator died owning accounts or property in their sole name and without a beneficiary designation. Probate is the court-supervised process in which the testator’s will is validated and administered. The probate process generally unfolds in the following manner: a…
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One Beneficiary Inherits a Mortgaged Property
A person can leave a property to a beneficiary under the terms of a will or trust, or with the use of a transfer-on-death deed or Lady Bird deed (in those states that permit these deeds to avoid probate). When the home transfers, a mortgage or loan secured by the home also transfers. The person…
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Why Does the Type of Devise Matter-Ademption?
Ademption refers to the withdrawal or nullification of a gift because the property identified in the will is no longer in the willmaker’s estate. Ademption applies to specific devises where the property is no longer in the willmaker’s estate. For example, if Fred’s Canopysaurus Flintmobile is stolen and never recovered, it will obviously be impossible…
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Why Does the Type of Devise Matter?
You might be surprised to learn that the type of devise has very significant implications when an estate is not large enough to cover all the gifts made by the will, administration expenses, creditors’ claims, and other obligations. The doctrine of abatement determines the order in which types of devises are reduced. Generally, the residuary…
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What are Demonstrative and Residuary Devises?
A demonstrative devise is a general gift that is payable from a specified source. For example, Mario leaves his brother Luigi a gift of $25,000 from his Bank of Mushroom Kingdom savings account or Mario leaves Luigi a gift of any three plungers in Mario’s extensive plunger collection. A residuary devise is a gift of…
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What are the Types of Devises?
There are several different types of devises: general, specific, demonstrative, and residuary. A general devise is a gift of a specified quantity or value that is to be made from any property of that type. For example, if Ward leaves his son Beaver a gift of $10,000, that is a general devise and may be…
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What Is a Devise in My Estate Plan?
Estate planning has uncommon terms. Some of the words may also be homophones—words that are pronounced the same but have different meanings and spellings. For example, an heir is a person entitled under state law to receive money or property from another person when that person dies. In contrast, air is an invisible gaseous substance.…
Category: Probate
Eckert & Krautkramer, LLC
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