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How Does a Probate Proceeding Work?

A Will, also known as Last Will and Testament, is a legal document that is used in probate court.  It’s used when a person dies with assets that are in their name alone without a surviving joint owner or beneficiary designated, says the Record Online in the article “Anatomy of a probate proceeding.”

So, how does a probate proceeding work?

How does a probate proceeding work
Probate has been referred to as the law suit you file against yourself after you pass away.

Probate is a judicial or court proceeding, where the probate court has jurisdiction over the assets of the person who has died. The court oversees the personal representative’s payment of debts, taxes and probate fees, in addition to supervising distribution of assets to the person’s beneficiaries. The personal representative of the will has to manage the probate assets and then report to the court.

Without a will, things can get messy. A similar court proceeding takes place, but it is known as intestate succession, and the assets are distributed according to state law.

To start the probate proceeding, the personal representative completes and submits a Petition for Administration with the probate court. Most personal representatives hire an estate planning attorney to help with this. The attorney knows the process, which keeps things moving along.

The probate petition lists the beneficiaries named in the will, plus certain relatives who must, by law, receive legal notice in the mail. Let’s say that someone disinherits a child in their will. That child receives notice and learns they have been disinherited. Beneficiaries and relatives alike must return paperwork to the court stating that they either consent or object to the provisions of the will.

A disinherited child has the right to file objections with the court, and then begin a battle for inheritance that is known as a will contest. This can become protracted and expensive, drawing out the probate process for years. A will contest places all of the assets in the will in limbo. They cannot be distributed unless the court says they can, which may not occur until the will contest is completed.

In addition to the expense and time that probate takes, while the process is going on, assets are frozen. Only when the court gives the all clear does the judge issue what are called Letters of Administration, or “Letters Testamentary,” which allows the executor to start the process of distributing funds. They must open an estate account, apply for a taxpayer ID for the account, collect the assets and ultimately, distribute them, as directed in the will to the beneficiaries.

Now that you know a little about how a probate proceeding works you’re probably asking whether a will contest, or probate be avoided? Avoiding probate, or having selected assets taken out of the estate, is one reason that people use trusts as part of their estate plan. Assets can also be placed in joint ownership, and beneficiaries can be added to accounts, so that the asset goes directly to the beneficiary.

By working closely with an estate planning attorney, you’ll have the opportunity to prepare an estate plan that addresses how you want assets to be distributed, which assets may be placed outside of your estate for an easier transfer to beneficiaries and what you can do to avoid a will contest, if there is a disinheritance situation looming.

Reference: Record Online (August 24, 2019) “Anatomy of a probate proceeding”

Tom Benson Excludes Daughter and Grandchildren from his Will

The last will of multi-millionaire Tom Benson, who owned several professional sports teams and other businesses, did not include his daughter and her children

Before he died, the owner of the New Orleans Saints and Pelicans gave millions of dollars of property to his daughter and her children, but they were not included in his last will and testament.

Tom-BensonThe last will of multi-millionaire Tom Benson, who owned several professional sports teams and other businesses, did not include his daughter and her children, according to an article from KPVI,“Though excluded from his will, Tom Benson's daughter and grandchildren received much from family patriarch.”

Following Benson's death, court records indicate that his third wife Gayle became the sole beneficiary of an estate controlling New Orleans' NFL and NBA franchises, as well as the Dixie Brewing Co. There were other valuable businesses or properties in the estate: three car dealerships, the site of Benson Tower and Champions Square, a $3.6 million Uptown mansion, a racing stable and a parking lot used by fans attending Saints or Pelicans games.

As the will reads, daughter Renee Benson, granddaughter Rita LeBlanc, and grandson Ryan LeBlanc received nothing further. They were parties in a complex, two-year court battle that began in 2015 after a falling out with Benson. The three were left with control of three car dealerships, bank branches and a hunting ranch in and around San Antonio.

Louisiana law allows relatives up to five years to decide whether they want to challenge the validity of a will. The allegations are typically that the deceased was either mentally incapacitated or subject to undue influence in making the will.

 However, the estate planning attorney who helped Benson prepare his will, Paul Cordes Jr., said he’s confident the document would survive a challenge. Benson’s will was drafted only a few weeks after a New Orleans judge found Benson was mentally fit enough to handle his own affairs, which Renee and her children had denied in a lawsuit filed in 2015.

Although Gayle is the sole beneficiary of her late husband's estate, Saints and Pelicans President Dennis Lauscha is the administrator. All of Benson's property was placed in a trust, the governing terms of which haven't been made public.

When Gayle passes away—she’s now 71—it is likely that there will be trust rules that will direct the line of succession. Gayle has no children of her own. But we won’t know what those rules are unless very specific circumstances occur. Sounds like Benson did some good estate planning.

Reference: KPVI (March 19, 2018) “Though excluded from his will, Tom Benson's daughter and grandchildren received much from family patriarch”

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