What is probate?

Probate is the legal process that includes the administration of the decedent’s estate, resolution of all claims against the decedent, and the distribution of the decedent’s real and personal property, under a will or otherwise.

The law governing probate varies across each of the 50 states and the District of Columbia.  See how probate law governs the rights afforded to surviving spouses in your state.

Am I entitled to Social Security benefits?

A surviving spouse may be entitled to social security.  Visit our Social Security guide for additional information about a surviving spouse’s rights to benefits under Social Security.

Is my state a community property state?

There are eight community property states.  The community property states are as follows: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington.  In addition, Alaska although not a community property state, permits its couples to opt into a community property agreement.  Although Wisconsin is not officially a community property state, a surviving spouse has the right to elect an amount equal to no more than 50% of the augmented deferred marital property estate.

Find additional information on a surviving spouse’s rights in your state.

How is the augmented estate determined?

Today, twelve states have adopted the Uniform Probate Code with respect to the “augmented estate” in order to determine the elective share.  To be sure, the “augmented estate” may vary slightly in your state.

The augmented estate is generally defined to include all of the decedent’s probate and non-probate assets along with the surviving spouse’s estate.  The augmented estate also includes property and transfers made by the decedent shortly before his or her death.

The states that have adopted the augmented estate for surviving spouse elective share calculations include: Alaska, Idaho, Maine, Minnesota, Montana, Nebraska, New Jersey, North Dakota, South Dakota, Utah, Virginia, and West Virginia.

New Jersey, for example, defines the augmented estate under N.J. Stat. Ann. § 3B:8-3, to include the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money’s worth for the transfer, if the transfer is of any of the following types:

  1. The decedent retained a right of possession or income from the property;
  2. The decedent retained the power to consume the transferred property or revoke, consume, invade or dispose of the principal for his own benefit;
  3. Any transfer held at the time of the decedent’s death with another who held a right of survivorship;
  4. Any transfer as a gift within the two years preceding decedent’s death in excess of $3,000.

Are the attorneys at Clark Skatoff PA licensed in my state?

Our law firm has attorneys licensed in the following states: Florida, New York, California, Illinois, Ohio and Maryland.  Referrals to attorneys in other states available upon request.

What legal services does the law firm provide?

Our law firm handles probate administration, probate and trust litigation, guardianship administrations and litigation, estate planning, and tax matters. We also represent employees, spouses, and beneficiaries in litigation concerning retirement plans, IRA’s, 401(k) plans, pension plans, and 403(b) plans.

What if I cannot afford a lawyer?

For those involved in litigation, many cannot afford legal representation. The representation of a surviving spouse may involve multiple parties all suing each other, in multiple lawsuits, and in multiple courts.  Litigation can be very expensive. Depending on several factors, for example where the deceased spouse owned real estate and what type of challenge is being asserted, there could be significant out of pocket costs, such as expert witness fees, court reporter fees, and travel to various jurisdictions for taking evidence.

Every case is different.  We tailor our fee arrangements with our clients so that it works for our clients and for the law firm.  Please call us for more information please call us at (561) 842-4868, or toll free at (888) 752-8633.

Cannot Find What you are looking for? Contact Us

To speak with one of the attorneys at Clark Skatoff about your legal matter, please call us at (561) 842-4868, or toll free at 888-752-8633

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