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Probate Court and Estate Planning

Brian Fogarty May 31, 2022

Two people working at desk with model houseLosing someone that we care about is difficult.  It can present additional challenges when we embark upon the process of ensuring that assets owned by that person be dealt with and transferred in the proper manner.  The passing of a loved one can also be an opportunity to reflect on our own planning and help us to see how important it is to make things as easy on those left behind as possible.

Probate Court for the Estate

In Rhode Island, each City and Town has its own Probate Court.  This Court has jurisdiction over the disposition of residents’ assets either included in Wills or owned by decedents who have not made proper Wills before they passed.  If a Rhode Island resident dies with no Will (intestate), the State has laws that govern how their assets will be passed.  You need an Attorney who is familiar with both the process and appropriate laws to walk with you through it and to make things progress as smoothly as possible, making it easier for beneficiaries.  This process should begin as soon as is possible and several problems can occur by letting too much time pass between the decedent’s passing and the beginning of the administration of an Estate.

Wills

A Last Will and Testament is a written document which sets out instructions for how you want your assets to pass.  Wills range from very simple to very complicated.  They can also speak to your final arrangements and even to who you would prefer to have guardianship over your dependents.  Online or “box” Wills often do not bear in mind that Rhode Island has its own specific laws which vary from other states.  Provisions in Wills that you may feel will govern when you pass can be disregarded entirely if they fail to comply with these laws and change the entire outlook for those left behind.  For this and other reasons, it only makes sense hire a Rhode Island Attorney who does this type of work regularly to ensure that it is done correctly.

Powers of Attorney

These documents, if done correctly, are straightforward and are fairly inexpensive.  That said, they can be unbelievable helpful if needed and avoid the unnecessary time consuming and significant expense of having to administer a Guardianship with continued Court Supervision.  Both of these documents only have effect when you are still alive.  A Power of Attorney authorizes your appointee to make financial decisions and act on those decision.  It is usually used when you are no longer able to make these decisions for yourself.  This includes buying or selling real estate, dealing with bills and bank accounts, getting or settling mortgages, making gifts consistent with prudent planning, and a myriad of other things.  A Power of Attorney for Healthcare (similarly named but a completely separate document) appoints someone to make healthcare decisions consistent with your desires in the even that you are unable to make them for yourself.

Trusts

A Trust manages your assets either during your life or after you pass or both.  A Trust can allow you continued control over the disposition of your assets in a way that a normal Will often does not or cannot.  Trusts are often set up to avoid having to lose all of you assets in the event that you need to go into a nursing home later in life but often require planning years in advance to be effective.  They can provide for a disabled child, for an irresponsible heir, or for minors.  They can also help avoid unnecessary taxes.

You really want an attorney who is able to ask questions and listens for problems that a trust may solve.  They are more complicated and more expensive than other planning tools but can also be invaluable in solving certain problems.  Over the last 25 years I have seen a lot of Trusts set up where the settlors (people setting them up) have no idea or a wrong idea about what they do.  This isn’t helpful.  Get a Trust set up if it helps solve a specific problem that you want/need solved.  If it unnecessarily complicates things and doesn’t help, then you don’t want one in your estate plan.

If you would like more information regarding this article please contact the Law Offices of Devane, Fogarty & Ribezzo and ask for Brian Fogarty.  We are conveniently located at 1454 Main Street in West Warwick, Rhode Island and have been serving the community there since 1998.  We offer free initial consultations via phone, zoom, or in person.  To speak with Attorney Brian Fogarty call (401) 289-1007 or visit www.DFRlawRI.com