Frequently Asked Questions
What is Probate?
Probate is the legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the decedent’s property. Probate may be required whether or not a valid will exists, as long as the deceased person’s assets are valued at more than $100,000. Probate protects the instructions of the deceased, confirms the executor as the personal representative of the estate, protects the interests of family members who may have claims against the estate, and protects the executor against claims and law suits.
2. What do I need to do to handle the probate process?
The first task of the personal representative after opening the probate case with the court is to inventory and collect the decedent’s property. Next, the personal representative pays any debts and taxes that must be paid. Finally, the personal representative distributes the remaining property to the decedent’s beneficiaries, either as instructed in the will, or per the intestacy laws of the state.
3. Why and how can I avoid the Probate process?
Probate generally lasts several months, occasionally over a year, and can incur substantial court and attorney costs before all the property can be distributed. One of the many ways to avoid probate is to execute a revocable living trust. A person transfers ownership of his real property (house, etc.) from himself to a trust which he controls and can revise at any time. Upon his death, the persons named as beneficiaries in the trust acquire ownership of it and, therefore, the property the trust owns. Since probate is a public process, a living trust has the added advantage of preserving the privacy of the deceased and his heirs as well as avoiding some estate tax.
Probate can also be avoided by setting up P.O.D. (paid on death) designations on all of your bank accounts and T.O.D. (transfer on death) on all your brokerage accounts. Retirement accounts such as 401Ks and IRAs that have named beneficiaries automatically avoid probate. The requirements for real estate are a bit more involved – since one must add a named beneficiary to the property deed itself.
4. How long will it take and how much will it cost to resolve my dispute?
It is impossible to predict the time and cost required to resolve a specific dispute without a detailed review of the issues involved. However, regardless of the details of any particular case, a large determinant of time and cost is the manner in which the parties choose to settle their disagreement. Litigation, that is, seeking redress through the courts and legal system, can take many months, sometimes years, and cost many thousands of dollars. Two popular alternatives to this expensive and time-consuming litigation process are Arbitration and Mediation. Depending on the parties willingness to work together in good faith, either of these methods can reduce the time and cost needed to settle a dispute to a fraction of that needed to take it to trial.
5. Why is litigation so expensive and time-consuming?
There are four, major factors which contribute to the expense of litigation.
- Lawyers must determine the facts from the viewpoints of all the parties. Written questions and document requests must be submitted to opposing parties. Testimony must be secured via depositions.
- Documents and testimony must be obtained from neutral witnesses or third parties.
- Experts need to be hired to evaluate these facts and advise the lawyer. These experts often suggest additional facts that need to be secured to make informed judgments.
- Court costs, filing fees, court recorders, process servers, investigators and overloaded court calendars can also add substantially to overall costs and delays.
6. What is Arbitration and how does it work?
Arbitration is a legal technique for the resolution of disputes outside the courts, in which the parties to a dispute submit it to a neutral third party (the “Arbitrator”) by whose decision they agree to be bound. It is similar in nature to a trial by a judge, sitting without a jury. The parties introduce evidence such as testimony and documents to support their positions. The Arbitrator considers all the evidence and then makes a decision. This decision is binding on all parties and cannot be appealed. The decision has the effect of a Judgment of the Superior Court upon payment of filing fees and submission of the supporting documents. Two advantages of arbitration are: 1) when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed and, 2) arbitral proceedings and an arbitral award are generally non-public and can be made confidential.
7. What is Mediation and how does it work?
Mediation is a form of alternative dispute resolution in which a neutral third party (the “Mediator”) aims to assist the disputing parties in reaching an agreement. Whether an agreement results or not, and the content of that agreement (if any) is determined by the parties themselves – rather than accepting something imposed by an outside party. A good mediator can pinpoint the strengths and weaknesses of each side and provide a neutral and informed perspective. Thus, there is no need for the posturing or positioning needed for a trial or court proceeding. The mediator assists the parties in reaching an agreement that they can live with. All parties must agree to compromise for the process to work.
8. Why do I need my own lawyer if the Mediator or Arbitrator is already a lawyer?
You need your own lawyer to advise you about the law and ensure that all legal issues are addressed. Your lawyer is also responsible for working with the other party’s lawyer to select a proper Mediator or Arbitrator. Remember, the job of the Mediator or Arbitrator is to reach an agreement or render a decision – whether or not it is in your best interests. Only you and your lawyer are fully committed to protecting your best interests.
9. What options does Moss and Murphy provide in terms of legal representation?
Moss and Murphy is fully prepared to act as your legal representative regardless of the chosen method of dispute resolution – be it Litigation, Arbitration or Mediation. For parties seeking assistance with cases that require a neutral third party, Glen L. Moss has served as both a Mediator and Arbitrator in numerous instances. He has mediated a variety of disputes – involving real estate, trust and probate, and business problems such as partnership dissolutions. In the past, Mr. Moss has also served as an arbitrator with the American Arbitration Association.
10. Why should I consider hiring an attorney for dealing with the government?
Attorney know the procedures of the agency. They also know your rights and the potential costs and benefits related to dealing with the agency More specifically, Ms. Murphy handles many cases before the Workers Compensation Appeals Board (WCAB). She spends substantial time helping injured workers secure needed medical care. Without her help or the help of similarly experienced attorney, the injured worker is unlikely to receive the medical care provided by law. In contrast, Mr. Moss has handled many cases before the IRS. He is experienced in defending deductions claimed on tax returns and can also take the audit to the Appeals Division, where the Appeals Officer must consider the risks of litigation in US Tax Court. Thus, an attorney like Mr. Moss may be more successful in obtaining compromise than a taxpayer with counsel.
11. Where can I obtain copies of Mr. Moss’ articles on Appraisals and Predatory Lending?
