Question 1. What is the difference between living probate and regular probate?
New York courts are responsible for hearing cases that involve a number of different legal issues. Many probate cases involve the property left behind after someone has died, while other cases involve issues about people who are still alive. It’s these cases where someone is still alive but needs the court to intervene that are generally referred to as “living” probate cases.
Question 2. What happens in a living probate case?
When a New York court hears a living probate case, it typically has to decide what should be done after a person has become incapacitated. An incapacitated person is someone who cannot make his or her own decisions. For example, someone who has been in an accident and who has been left comatose, or someone who is suffering from the effects of Alzheimer’s disease may not be able to speak, communicate, or make choices.
In this situation, the court will have to decide what is in that person’s best interests. Typically this involves appointing a guardian or a conservator to manage the incapacitated person’s affairs.
Question 3. Can I avoid living probate?
Usually. If you take precautions now, while you are still capable, you can usually avoid the necessity of having to go through living probate. By creating, for example, living trusts, powers of attorney and medical directives, you can allow others to step in if you are incapacitated without first having to go to court.
If you’d like to learn more about probate and how you can create a plan that will help you protect your wealth, you can attend our next free Legacy Wealth Planning workshop. Contact our office for registration information.
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