Small estate probate administration exists in some form in all states. This process allows estates below a specific value to be probated without all the requirements of formal, supervised probate. Even if your state does not require the estate administrator of a small estate to have a probate attorney, you’d be better off at least talking to one if you are named executor or administrator. Probate laws differ by state, and only a qualified probate attorney will know all the technical details that you’ll need to know to properly administer a small probate estate.

Qualification: Even before you begin the small estate probate process, you may have to talk to an attorney to make sure you qualify. Each state determines what kind of estate qualifies for simplified procedures, and each has its own different standards. For example, states typically set a dollar limit for small probate estates, but how they determine what qualifies as probate property differs.

Procedures: Small estate probate typically requires interested parties to file affidavits with the court. Anyone claiming property must file an affidavit that states what property he or she is entitled to take and do so within a specific time period. However, states may have different forms claimants have to file depending on whether the decedent died intestate or left behind a Will. They may also require the individual claimants to file their forms or have the estate administrator do it.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Sometimes its obvious when an adult is in need of someone to make decisions for them. Other times, it is not as easy to know when to step in. From a legal standpoint, that is what guardianship proceedings are for — to allow a court to make the decision. Although state laws will vary somewhat, a guardian is typically someone who has been appointed by the court after a lengthy proceeding and then has control over the personal decisions relating to the ward. For example, a guardian can generally decide where the ward lives or what doctor they use. The estate of the ward, or finances, are not under the control of a guardian. Only a court can make the final decision whether or not someone is incapacitated to the point that they require a guardian; however, the following are some common reasons that may prompt you to seek guardianship over a family member or loved one:

• They are unable to make medical decisions or fail to follow through with medical treatment
• They have a mental illness that impairs their ability to make basic decisions
• They have a physical condition that impairs their ability to care for themselves
• They are low functioning or mentally challenged to the point that they cannot make decisions for themselves
• They have a drug or alcohol addiction that impairs their ability to make decisions
• They are homeless or at risk for being homeless as a result of their inability to care for themselves

If you are convinced that a guardian is needed and wish to petition the court for appointment as guardian, consult with your guardianship attorney as soon as possible.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Whether your estate plan is simple or complex, it will likely impact a number of people upon your death. For this reason, many people question whether or not they should discuss the details of the plan with those who will be affected. There is no simple or universal answer to this question. Some people choose to share all the details, some share only important highlights, and yet others share nothing. How much you share may also depend, to a large extent, on the person with whom you are sharing.

• Spouse or Partner: You are not legally required to share anything about your estate plan with a spouse or partner, yet practical reasons often make it a good idea. Many couples own assets that are held jointly. In addition, if you have children in common then you likely share many of the same beneficiaries as well. For these reasons, it may be a good idea to consult each other before you create an estate plan.

• Trustee/Executor/Guardian: Positions such as executor, trustee, or guardian not only carry with them important duties and responsibilities, but are voluntary positions, meaning the appointee does not have to accept the position. As such, it is always a smart idea to discuss your intention to appoint the person in your estate plan before you actually do so in the event the person has any misgivings about the appointment.

• Beneficiaries: There is often no practical reason why you need to share details with beneficiaries. You may wish to do so simply so they will know what to expect, or you may prefer to keep the details to yourself to avoid any potential disharmony that could result if you share the details.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

At some point in time you may start to worry about a parent who is showing the natural signs of aging, yet also shows no interest in moving from his or her home. Understandably, we tend to view the ability to drive and the right to remain in our home as symbols of our independence. Unfortunately though, remaining at home can be potentially dangerous if adjustments or modifications are not made to the home. Medical issues may also require the assistance of home health aids or nursing care if your parent chooses to remain at home. So how can you approach the subject without offending your parent? Sometimes, a pragmatic approach works better than any other.

While each person’s aging process is different, there are some common modifications that may need to be done to your parent’s home to accommodate the aging process. Hand railings, grab handles, widening of doorways, ramps, and additional lighting are often required. For a two story home, a chair lift may also be needed. Request an estimate from a builder to find out what all those modifications will cost. An additional estimate should also be prepared to cover the cost of home health care or nursing services, as well as additional help such as cleaning services or meal preparation.

Once you have gathered all the relevant estimates, sit down with your parent and explain what the cost of staying in his or her home will be as compared to moving to a retirement facility. Sometimes, a parent can see the benefit of moving when it is discussed from a practical, not emotional, viewpoint.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Most people know that creating a Last Will and Testament is the foundation of any estate plan and, therefore, make a point of executing a Will. Updating your Will, however, after a major life change can be as important as executing the Will in the first place. Although each person’s situation is different, and there are certainly other reasons that may also warrant an update, there are three major life changes that should prompt anyone to update a Will and any additional supporting estate planning documents.

A divorce is always a good reason to update your Will. The majority of people create reciprocal Wills, meaning that if one spouse dies, all assets go to the other spouse and vice versa. If you get a divorce, and subsequently die without having updated your Will, your current wishes for the distributions of your estate may not be followed.

Marriage, likewise, calls for a Will update for the opposite reason. Although some states allow a spouse to “take against a Will” whether or not the Will actually names the spouse as a beneficiary, state law in the state where you are a resident at the time of death may not provide this option. Even if it does, it may not give your spouse as much of your estate as you intended him or her to have.

The birth of a child or grandchild is also a good time to update your Will. Many people rely on the generic term “issue” to refer to children or grandchildren in a Will; however, this can present a problem if a child or grandchild was born out of wedlock or there is some other question as to paternity. By naming the children or grandchildren in the Will, you avoid any potential problems.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

If you have taken the time to consider both your retirement plan and your estate plan, then take the extra time to consider how one impacts the other and vice versa. Retirement planning and estate planning are closely related and should always be considered together, whether making initial plans or making changes to existing plans. Money and assets are the cornerstones of both a retirement plan and an estate plan. It should be no surprise then that the two go hand in hand.

When you make your initial retirement plan, you must consider what assets you plan to use for your retirement. At the same time, you will want to consider which assets you plan to leave to family members and loved ones and be sure not to include them in your retirement assets. For example, if you own a vacation home in the Caribbean, you will need to decide whether that is an asset that you plan to sell and use the proceeds during your golden years, or do you plan to pass that down to children or grandchildren? If you plan to pass it down, it need to be included as such in your estate plan.

What happens, however, if you originally planned to use the property as retirement income, but find that as you reach retirement age that you do not need the additional income? What happens if the reverse happens and you now find that you do need the home that you planned to leave to your children? A change in one plan warrants a change in the other.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

An advanced directive, often referred to as a living will or health care directive, is an important part of any comprehensive estate plan. Creating and executing an advanced directive for members of the Gay, Lesbian, Bi-Sexual, and Transgender, or GLBT, community can be even more important. Individual state laws determine whether or not advanced directives are recognized within the state; however, if you live in a state that recognizes advanced directives, consider executing one as part of your estate plan.

Although state laws may determine specifics, such as what can be included in an advanced directive, or how one must be worded, the basic concept behind an advanced directive is the same among all states where they are recognized. An advanced directive is a legal document, signed by you, that allows you to appoint anyone you choose to make health care decisions on your behalf in the event you become unable to do so as a result of a physical or mental incapacity.

In the absence of an advanced directive, your partner would need to seek court approval in order to be allowed to make those decisions on your behalf. Even if you were legally married in one of the few states that recognizes same sex marriages or domestic partnerships, they may now be sufficient to allow your partner to make decisions for you absent court approval. In order to avoid the time required to seek court approval, not to mention the risk of the court denying the request, discuss the creation of an advanced directive with your estate planning attorney today.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

When you sit down with your estate planning attorney to plan your estate, a rudimentary understanding of common wills and trust terminology may make you feel more comfortable. For example, the terms “beneficiary” and “heir” are often used interchangeably; however, in most states they have very different meanings.

State laws determine rules, procedures, and terminology with regard to estate matters; however, there are some fairly universal concepts and terms. An heir is typically someone who will stand to inherit from your estate under the laws of intestate succession. Intestate succession, in turn, simply refers to an estate wherein the decedent died without leaving a valid Last Will and Testament. As a general rule, heirs under intestate succession laws include a spouse and other blood relatives. Your spouse and children will likely be the first heirs in line to inherit, followed by grandchildren, parents, siblings, and on down the line until your entire estate has been accounted for under your state’s intestate succession laws.

A beneficiary, on the other hand, is someone that you specifically mention as receiving a gift under the terms of your will. For example, if you bequeath your father’s ring to your daughter in your will, she is then a beneficiary under the terms of your will. Likewise, if you bequeath your vehicle to your best friend Sally under the terms of your will, Sally is a beneficiary. A person can be both an heir and a beneficiary. In the above examples, your daughter is both an heir and a beneficiary; however, Sally is only a beneficiary.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Understanding the concept of intestate succession can certainly be important if you are planning your own estate; however, you may also find it helpful in the event that a relative dies without leaving a will behind. Wills, trusts and estates fall under the jurisdiction of state laws.  Each state determines what laws, rules, and procedures apply to wills, trusts, and estates. Intestate succession, however, is a fairly universal concept that applies, in some form, to all the states.

When a person dies, and does not leave behind a valid Last Will and Testament, the person is said to have died “intestate.” When that happens, the state intestate succession laws govern how the assets that make up the decedent’s estate will be handled and who will receive them. Another scenario under which the laws of intestate succession apply is when a will was executed, but the will failed to account for all the estate assets. For example, if the decedent left a will with a number of specific bequests, yet did not indicate who would receive any cash or assets that are not specifically mentioned in the will.

State law determines who inherits when a decedent dies intestate and how the estate assets are apportioned among the heirs. In most states, the spouse and children are first in line to inherit, followed by lineal descendants such as grandchildren and/or parents, siblings, and other blood relatives.

Before assets in an intestate estate can be transferred to heirs, a court must determine who the heirs are to the estate.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

If you are a small business owner, you have undoubtedly worked very hard to grow your business. As a result, you should be certain to provide for the disposition of your business in your estate plan. A small business provides for a unique set of concerns when it comes to estate planning; however, your business can be properly protected in the event of your death as long as you plan ahead.

A small business can be formed under a variety of different legal entities. How you formed your business will, to a great extent, dictate how you incorporate your business into your estate plan. If, for example, you formed a corporation, the business will legally survive your death as you are considered a shareholder of the corporation. A partnership, on the other hand, can be structured so that it may or may not survive the death of a partner.  A sole proprietorship, by virtue of the fact that it has only one owner, does not legally survive the death of the owner.

Whether you formed a corporation, partnership, sole proprietorship or other type of entity, you have a financial interest in the business that needs to be protected in the event of your death. Whether you simply wish to protect that interest and pass it down to your heirs, or wish to actually provide for a business succession plan that will keep the business alive, you must include a mechanism in your estate plan to legally accomplish your goals with regard to your small business.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.