FORMAL PROBATE VS. INFORMAL PROBATE

By Deloughery Law Office, PLC. of Deloughery Law, PLC 

What is formal probate (vs. informal probate)?

There are two distinctions in terms of how probate cases are handled. One has to do with whether a Petition is handled formally or informally. The other has to do with how much court involvement is needed during the course of a probate case.

Formal probate vs. Informal probate. Certain petitions can be granted informally by the Probate Registrar. For example, if he person dies with a validly executed will, and that will is submitted with all the correct documents, a personal representative or executor can be appointed on behalf of that presents a state without the need for a hearing. However, if the petition and accompanying documents do not fit within what the probate registrar is authorized to handle, then it must go before a probate judge or commissioner for ruling.

The probate case maybe started informally, but then may require a commissioner to rule on a petition. For example, even though a personal representative might have been appointed by the probate registrar informally, if the PR wants to have the court approved his or her legal fees and/or fiduciary fees, that would be filed as a petition requiring a hearing (i.e., formally).

Supervised vs. Unsupervised. Whether a petition in a probate action has been dealt with formally or informally has little to do with whether or not the case is supervised. Supervised administration means that the court must make decisions or approve actions before they are done. This usually happens when there is a significant about of money involved, and the various parties do not trust each other. If there is a dispute about what to do with assets, how to sell them, or how to distribute the sales proceeds, then the court would make all of these decisions on a step-by-step basis. One situation we have seen recently is when a trust owns commercial real estate and there is a dispute about who should be in control of the rental payments.  

A diagram might help show the different possibilities:

Formal-Unsupervised	Formal-Supervised
Informal-Unsupervised	Informal-Supervised

Notice that you can have any combination of formal/informal and supervised/unsupervised. For example, someone might be appointed Personal Representative informally, but then the family disagrees with how the estate is being handled so the court has to step in and make decisions (such as how assets are sold). On the flipside, the initial fight might be over whether a Will is valid or who should be the Personal Representative.  But once those initial issues are resolved the rest of the case goes along smoothly with little or no court involvement (supervision).

For more information, visit our website @ www.DelougheryLaw.com 

Preserving Resources for Well Spouse

Preserving Resources for Well-Spouse

Question: I was told that my ALTCS application was denied because I, the “well spouse”, had more than the one-half of the marital resources that ALTCS allows a well spouse to keep.  We are now in the process of reapplying, but now that I have spent my spouse’s one-half, I will also spend much of my spouse’s one-half during the months in which the new application processes.  Could this dilemma been prevented?

Answer: Given that ALTCS can take several months to process an application, the issue of who will pay for care while the application processes oftentimes arises.  In cases in which the applicant is married, the concerns are at least two-fold:  Obtaining care for the applicant is of paramount importance, but it is also critical that the well spouse preserves enough funds to sustain the quality of life to which he or she is accustomed.

The best way to preserve resources for a well spouse is to make sure that everything is in order before submitting the application.  It could take ALTCS several months to process an application, whether or not the application is ultimately approved.  And if ALTCS denies the application, you will have lost those months in which the application processed, and have to start the process anew.

While the general rule is that a well spouse can keep about one-half of the marital assets, there are oftentimes planning strategies to help the well-spouse maximize his or her resources.  But here again, the best way for a well spouse to accomplish this goal is to be proactive and engage in planning well before submitting the application to ALTCS.

For more information about Jackson White Elder Law, or to download any of their free resources, feel free to visit us at:  http://www.arizonaseniorlaw.com/resource,  http://www.arizonalongtermcare.com  or
http://www.myAltcs.com