Probate
The court process by which a Will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.
When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a Personal Representative to distribute the decedent's property according to the laws of Descent and Distribution. These laws direct the distribution of assets based on hereditary succession.
In general, the probate process involves collecting the decedent's assets, addressing creditors, paying necessary taxes, and distributing property to heirs.
Probate of a Will
The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent's property to the heirs according to its terms.
As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and no one has the right to suppress it. The person with possession of a will, usually the personal representative or the decedent's attorney, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time.
Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in a another state, the will disposing of these assets must also be probated in that state. To qualify as a will in probate, an instrument must be of testamentary character and comply with all statutory requirements. A will that has been properly executed by a competent person—the testator—as required by law is entitled to be probated.
As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a properly proved copy or duplicate of a will that has been lost or destroyed is presented to the court, it may be admitted to probate. A thorough and diligent search for the will is necessary before a copy can be probated as a lost will.
A codicil, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to statute.
Proceedings
A probate proceeding may involve either formal or informal procedures. Small estates may benefit from an informal and abbreviated probate proceeding. However, a probate proceeding may be switched from informal to formal during the course of administration, if issues so warrant.
The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will.
Guardianship of Minor Children
Wills often contain instructions on who should be appointed legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.
Collaborative Family Law Promotes Divorce with Dignity
A: Collaborative family law is a process through which the parties to a divorce and their individual attorneys commit to resolve all issues of the divorce by negotiated agreement without resorting to or threatening litigation.
Collaborative law requires all parties—spouses and attorneys—to sign a collaborative law participation agreement, pledging to take a reasoned approach on all issues. All participants agree to create proposals that meet the fundamental needs of both parties and, if necessary, to compromise to settle all issues. After this agreement is signed, each spouse meets with his or her lawyer. Then, both spouses and their attorneys attend the first collaborative meeting.
A: A collaborative process is less time-consuming, less expensive and less confrontational than a traditional adversarial divorce. Reducing such stress allows parties to focus on problem resolution. The parties’ lawyers represent their respective interests and can prepare all necessary paperwork, but the parties have more control over a collaborative settlement than a traditional divorce. The collaborative process is also more private than a contested divorce, which generates court filings, transcripts and hearings in open court. Where parties cannot work out differences, or do not value a negotiated solution, the collaborative process will probably not be effective.
A: In divorce mediation, a neutral mediator meets with both parties to help them reconcile their differences, but provides no legal advice to either party. The mediator is not authorized to make any decisions on the parties’ behalf. Like collaboration, mediation works only when the parties intend to be reasonable and fair. Frequently, agreement on certain issues may be reached through mediation, while other issues are referred to a court proceeding or a binding arbitration. Mediators generally do not prepare court paperwork or appear in court with clients. Parties using mediation generally consult with their lawyers outside the mediation process.
In collaboration, each party is fully and individually represented by legal counsel throughout the process. Collaborative attorneys can prepare all necessary paperwork and attend the required hearing where the divorce agreement is presented to the court for approval. The costs for collaboration and mediation are roughly comparable.
A: Most collaborative family law practice groups include non-lawyer members who are collaboratively trained financial professionals and can act as neutral advisors on tax and planning issues. Some groups also include, as adjunct members, licensed real estate appraisers who are committed to doing neutral appraisals so the divorcing couple does not have to pay for two appraisals as well as for two appraisers to argue in court.
A: Most collaborative family law practice groups also have non-lawyer members including psychologists, family counselors and child specialists or licensed independent social workers. Such an individual may act as a “coach” for a client who is struggling with the emotional side of a domestic case, or as a neutral child specialist who helps clients work out an effective, age-appropriate parenting plan.
Divorce can be a confusing, complicated, and stressful time for military couples. However, gaining a general understanding of how this process works, while seeking to identify the specific issues that may apply in your case, can greatly reduce the time, expense, and emotional strain of a divorce. While you will largely follow the same process and procedures as a civilian couple when filing for divorce, there are unique legal issues which may apply result of military service. These issues may include determining the custody of children, calculating child and spousal support, and determining if any post-divorce benefits apply.
While divorce is largely governed by state law and local procedures, depending on where you file, there are certain federal statutes and military regulations which may be applicable to your divorce. Examples include the Uniformed Services Former Spouses' Protection Act, which can affect how disposable military retired pay is divided between the service member and former spouse, as well as determining eligibility for continued medical, commissary, installation exchange, and other benefits.
Overview
Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander's authority is limited, absent a civilian court order.
Service members and their spouses have access to military legal assistance services at no cost through the installation legal assistance offices. In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in the representation of both parties. Communications between a client and a legal assistance attorney are private, confidential and are generally covered by the attorney-client privilege. While military legal assistance attorneys may not be able to draft specific court documents or represent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills.
Legal assistance offices also provide notary services free of charge. For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.
Servicemembers Civil Relief Act protections related to divorce proceedings
The Servicemembers Civil Relief Act helps protect service members' legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.
In regard to divorce proceedings, service members may obtain a "stay" or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment. This is not an automatic right, and a military judge must find there good cause to do so, based on the justification provided by the military member.
The Servicemembers Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant's interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.
