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Probate

What happens if someone objects to the Will?

Does probate administer all property of the deceased?

Do I get paid for serving as an Executor?

How much does probate cost? How long does it take?

What is a Special Needs Trust?

What are the Benefits of a Special Needs Trust?

How can Special Needs Trusts be used?

Do I need an attorney to set up a Special Needs Trust?

Is a Special Needs Trust considered an asset?





Q: What happens if someone objects to the Will?

An objection to a Will, also known as a “Will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.

In order to contest a Will, one has to have legal “standing” to raise objections.  This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.  In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.


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Q: Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. 

Certain types of assets are what is called “non-probate assets” do not go through probate.  These include:

  • Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.


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Q: Do I get paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate.  In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate.  The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care.  It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.


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Q: How much does probate cost? How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay.  Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds.  These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.


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Q: What is a Special Needs Trust?

A special needs trust is a beneficial tool for someone with special needs that can improve their quality of life. If the person receives one or more public benefit programs like Medicaid or Supplemental Security Income (SSI), a special needs trust will be helpful for them.


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Q: What are the Benefits of a Special Needs Trust?

There are a number of benefits for special needs trusts. Firstly, they create the ability for a Trust beneficiary to stay eligible for financially tested public benefit programs like Medicaid and Supplemental Security Income (SSI). In the process of maintaining eligibility for these programs, a Special Needs Trust also creates a supplemental fund that can be used to maximize the beneficiary’s quality of life. Since quality of life is a personal matter, the multiple benefits that flow from a Special Needs Trust are always defined by the needs and goals of the Trust beneficiary.

 


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Q: How can Special Needs Trusts be used?

As previously stated, a special needs trust is for the comfort, safety, and happiness of the beneficiary. There are common ways a special needs trust can be used, though.

? Purchase a vehicle

? Purchase a home or condominium

? Travel expenses

? Telephone, cable, and internet services

? Education expenses

? Home care services

? Dental care

? Medical expenses


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Q: Do I need an attorney to set up a Special Needs Trust?

It depends on the type of Special Needs Trust, but you will need an attorney to set up a non-Pooled Special Needs Trust. You would also need the assistance of an attorney if other aspects of the Special Needs Trust require legal representation. Don’t hesitate to contact Chambers & Ennis today for Special Needs Trust planning & more.


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Q: Is a Special Needs Trust considered an asset?

A Special Needs Trust restricts the beneficiary’s direct access to assets in the trust to an extent. The assets are not considered legally available to the beneficiary.


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Based in Raleigh, North Carolina we assist clients throughout Wake County, NC and Johnston County, NC as well as the cities of Cary, NC, Morrisville, NC, and Clayton, NC.



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