PROBATE REPRESENTATION

Probate is the court proceeding that manages the distribution of a person’s assets following death.  Typically, a close family member or friend will be tasked with guiding the loved one’s estate through the probate process.  
When you’ve lost a loved one, and are tasked with distributing that loved one’s property, we’re here to get you through probate as efficiently as possible.  Allow McNamara Law Firm to serve as your guide through the process and ensure that any will or last instructions are properly executed.
Probate FAQ's
This should be used as a simplified guide to help give people a basic understanding of the probate process following the loss of a loved one.  There are a million different factors that can affect how an estate is probated, and whether it even needs to be probated.  This is not legal advice.  Reading this page does not establish an attorney/client relationship.  Consult an attorney if you have questions relating to the probate process.
Glossary of Terms (simplified)
Testator – A person who makes a will
Decedent – A deceased person whose estate we’re talking about
Beneficiary – A person who is entitled to receive a distribution from the decedent’s estate
Personal Representative – The person who is in charge of managing a decedent’s probate estate (known as the executor in most other states)
Probate Estate – The property that a decedent owns at death that does not pass to another by way of any type of joint ownership or beneficiary designation
Intestacy – The law in Nebraska that directs to whom your property will go if you die without a will.
What happens if the decedent died with a valid will?
If the decedent passed away and had executed a valid will during his or her lifetime, the personal representative will submit that will to the probate court when he or she files the application for probate.  Any probate asses will then be distributed to the beneficiaries according to the instructions in the will.
What about if the decedent did not have a valid will?
If a decedent passes away without a will, the law of intestacy will direct how that person’s property will be distributed.  The intestacy law acts as a “best guess” for how the State of Nebraska thinks a decedent would have wanted to distribute his or her property.  In simplified terms, the estate is distributed in bulk to a spouse of the decedent, and then to the decedent’s children if there is no spouse, and then to the decedent’s parents if the decedent did not have children, and then to decedent’s siblings if his or her parents are not alive, and so on, and so on…
What is the typical timeframe for the entire probate process?
Typically, we’re looking at a period of approximately nine months from the time we apply to open a probate case in the county court, to distributing estate assets and filing to close the probate estate.  

However, factors such as beneficiaries fighting with each other, or needing to sell a home that’s part of the probate estate can significantly lengthen the process.
What is the typical timeframe for the entire probate process?
This is a bit of a complicated question, but a basic rule of thumb is that property that hasn’t been designated to pass to somebody else by way of joint ownership, pay-on-death benefits, beneficiary designation, or as property of a trust, will end up in probate.  

For example, let’s say you own a bank account by yourself.  And you did not list a pay-on-death beneficiary on the account.  If you pass away, the money in your bank account will have nowhere to go, and it will end up being part of your “probate estate”.

On the other hand, let’s say you and your spouse co-own the account jointly together.  If you were to pass away, it becomes just your spouse’s account, and would not be considered part of the probate estate.
What about the Nebraska Inheritance Tax?
Nebraska is one of the few states that uses an inheritance tax rather than an estate tax.  In layman’s terms, rather than taxing the estate based on the total value of the estate, Nebraska looks at who the gifts are going to, and assesses a tax based on how close a relationship the beneficiary has to the decedent.  Under this system, gifts to spouses and certain charities are not taxed.  Parents and children of the decedent have a certain amount exempt from tax liability and are taxed at 1% on gifts that exceed the exempt amount.  Aunts, uncles, cousins, nieces and nephews have a smaller exemption, and are taxed at 13% above that exemption.  And a gift to an unrelated friend would receive no exemption and the entire gift would be taxed at 18%.  

Almost all property that passes from someone to another as a result of that person’s death will be subject to the inheritance tax.  This includes property that passes outside of the probate estate, including joint bank accounts, and pay on death provisions.  For the most part, only life insurance proceeds that pass to a beneficiary other than the decedent’s estate will be subject to the Nebraska Inheritance Tax.
Contact us to schedule your initial evaluation meeting and see what tailored legal support can do for you.
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