To Probate or Not to Probate?

Probate
Whether you die with a Will, a trust, or neither, some sort of estate administration is almost always needed.

Everyone dies with one of three estate plans. Some die with a Last Will and Testament (Will), others die with a fully funded revocable living trust (RLT), while still others die with neither a Will nor a RLT. The purpose of this brief article is to introduce each of these three estate planning approaches – not to serve as an in-depth treatise on the benefits and drawbacks of each.

Will-Based Planning

When a loved one dies, you need to go through his or her papers as soon as possible to look for a Will. Why? This traditional estate planning legal document often contains critical instructions regarding any “final wishes” of the decedent. For example, some people include funeral and burial instructions in their Wills. Time is of the essence when it comes to those decisions.

Assuming that you’ve found the Will, the first thing you should do is read it and determine who is appointed as its executor/personal representative. If you are the executor, you need to know who the beneficiaries of the Will are, what they are to receive, and when. You also need to determine whether the Will identifies anyone else as a co-executor. For example, a parent might name her two adult children as co-executors of her Will. All co-executors must be involved in the probate process unless they formally decline the appointment. Read the Will to see if it creates any “testamentary trusts” to administer the inheritance. Parents often provide that the inheritance of a minor child shall be held in trust and distributed according to its terms, instead of being distributed outright in a lump sum.

Without delay, contact the attorney who prepared the Will. That attorney is likely the person who knows the “testamentary intent” of the decedent, along with the nature and location of all estate assets.

Proving the Will

The first responsibility of the probate court is to “prove” the Will. In other words, is the Will presented truly the “Last Will” and not the “second to the last Will”? If the judge determines that the Will presented is the “Last Will” and is otherwise legal in all technical respects, the judge will issue “letters testamentary” or “letters of administration,” giving you legal authority to act as executor on behalf of the estate. You can use this key document when dealing with the decedent’s banks, brokerage firms and insurance companies, and fulfilling the many responsibilities that come with being the executor of the estate.

Probate Administration

With a valid Will and letters of administration in hand, the duties of the executor regarding probate administration may vary from state to state, but generally the executor follows these fundamental steps:

  • Collects, protects, values and insures (if needed) the assets of the estate,
  • Files an inventory with the court listing the assets subject to probate,
  • Provides actual notice to known creditors and notice by publication to potential creditors,
  • Pays the final expenses, taxes and legitimate debts of the decedent,
  • Files appropriate state and federal tax returns for the decedent and the estate,
  • Distributes the assets according to the Will (with the approval of the judge, if needed),
  • Follows any additional specific instructions under the Will (with the approval of the judge, if needed), and
  • Closes the estate and receives formal discharge by the probate judge.
  • Note: the executor is often appointed to serve as the trustee for any “testamentary trusts” created over the inheritance. While your services as executor may end with the closing of probate, it may only be beginning, if appointed as trustee.

Revocable Trust-based Planning

If the decedent left a trust agreement, the estate will be distributed according to the terms of the trust document, with little if any involvement by the probate court. In many states, the trust agreement itself is not filed with the court unless there’s a contest or dispute. As a result, there’s no need for the court to declare whether the trust agreement is valid and appoint a trustee. This lack of probate is one of the chief advantages of a RLT-based estate plan. However, probate would still be necessary to approve of any guardian nominated to serve as the backup parent for an orphaned minor child.

In contrast to probate administration under the supervision of an impartial judge, the trustee is responsible for the complete stewardship over the trust assets and fulfilling its terms. This responsibility includes paying final expenses, taxes and legitimate debts of the decedent, managing assets, paying the debts and expenses, filing the tax returns and distributing the trust assets according to the terms of the trust agreement. As with a “testamentary trust” created under a Will, these distributions may be made in an immediate lump sum, staggered over years, or continue over multiple generations.

No Will or Trust

Every state has “intestate succession” laws governing what happens when a person dies without a valid Will or RLT. As described above, it’s even possible to have a Will declared invalid, resulting in the estate going through intestacy. One of the greatest drawbacks to “dying intestate” is the complete lack of input that the decedent has when it comes to who serves as executor and how the inheritance is distributed. For example, in many states, if the decedent was married and had minor children, then the surviving spouse doesn’t inherit the entire estate. The surviving spouse may be responsible for managing the share allotted to the children until each child reaches age 18. Upon reaching that age, the inheritance for each child must be paid over in one lump sum, even if the child has special needs or suffers from addictions.

Your life, loved ones, and estate are all unique. In turn, your estate planning should reflect your goals to protect everyone you love and everything you have.

Other articles you may find interesting:

Blended Families Need More Thoughtful Estate Plans

The Funeral Rule

What Is Probate and How to Prepare for It

Probate court
Probate is the legal process of finalizing a deceased person’s affairs and distributing any remaining assets.

The word probate is from the Latin word, meaning “to prove.” It’s the court-supervised process of authenticating the Last Will and Testament of a person who has died and then taking a series of steps to administer their estate. The typical situation, according to the article “Some helpful hints to aid in navigating the probate process” from The Westerly Sun, is that someone passes away and their heirs must go to the Probate Court to obtain the authority to handle their final business and settle their affairs.

Many families work with an estate planning attorney to help them go through the probate process.

Regardless of whether or not there’s a Will, someone – usually a spouse or adult child – asks the court to be appointed as the executor of the estate. This person must accomplish a number of tasks to make sure the decedent’s wishes are followed, as documented by their Will.

People often think that just being the legally married spouse or child of the deceased person is all anyone needs to be empowered to handle their estate, but that’s not how it works. There must be an appointment by the Probate Court to manage the assets and deal with the IRS, the state, creditors and all of the deceased person’s outstanding personal affairs.

If there is a Will, once it’s validated by the court the executor begins the process of identifying and valuing the assets, which must be reported to the court. The last bills and funeral costs must be paid, the IRS must be contacted to obtain an estate taxpayer identification number and other financial matters will need to be addressed. Estate taxes may need to be paid, at the state or federal level. Final income tax returns, from the last year the person was alive, must be paid.

The probate process takes several months and sometimes more than a year. That includes distributing the assets and making gifts of tangible personal property to the heirs. Once this task is completed, the executor (or their legal representative) contacts the court. When everything has been done and the judge is satisfied that all business on behalf of the decedent has been completed, the executor is released from his duty and the estate is officially closed.

When there is no Will, the probate process is different. The laws of the state where the deceased lived will be used to guide the distribution of assets. Kinship, or how people are related, will be used, regardless of the relationship between the decedent and family members. This can often lead to fractures within a family, or to people receiving inheritances that were intended for other people.

Reference: The Westerly Sun (Nov. 16, 2019) “Some helpful hints to aid in navigating the probate process”

Other articles you may find interesting: 

Is a Will Contest Worth It?

Should I Use a Bank as My Executor Instead of a Family Member?

Timeshares: The Inheritance No One Wants

timeshares vacations
Your heirs may not want the burden of  owning your vacation timeshare.

It seems like you can’t throw a rock in Florida without hitting someone who owns a timeshare, or who considered buying a timeshare. In general, the lucky ones are those who walked away from the sales pitch.

Don’t get me wrong – I’m sure there are millions of Floridians who actually use their week or two for getaways or family vacations. At least for a while. But, as an estate planning, elder law, and probate attorney, I frequently see families dealing with the downside of timeshare ownership. And as a financial professional, I can tell you they are NOT an investment – they’re an ongoing expense for an illiquid asset that will not appreciate, much like a swimming pool. People buy such things because they want them, not because they make any financial sense.

A timeshare is a form of fractional ownership in a property, typically in a resort or vacation destination. For example, if you purchase one week at a timeshare condominium each year, you own a 1/52 portion of that unit. Timeshares may be evidenced by a deed (you purchased an ownership interest in the property) or just a contract (you leased the right to use the property).

So, what are some of the downsides? Well, first of all, the fees never end. On top of the loan payment (if you financed your timeshare), there are annual fees, unexpected assessments, and miscellaneous fees to change weeks, trade locations, etc. And unlike a house, land, or even a car, you’ll never know what your timeshare is worth. While there are exceptions for the most desirable locations/weeks in places like Disney or highly desirable beach resorts, most “used” timeshares are NOT repurchased by the timeshare company, and end up being sold for next to nothing. In fact, sometimes it’s hard to even give them away!

Here’s a true story: Jack had a timeshare he no longer wanted. He gave it to a family member, Bill, as a gift. Bill used it for several years, but then had a financial setback and couldn’t afford the fees. He fell behind. He tried to sell it, but to no avail. So then he offered to give it back to Jack. Jack wanted no part of the timeshare and associated fees, and said “Thanks, but no thanks.” Then one day Jack received a recorded deed in the mail; Bill had quitclaimed the timeshare back to Jack! (In Florida, only the seller has to sign the deed). So, Jack then quitclaimed the timeshare back to Bill. I don’t know what happened after that – maybe they’re still tossing the hot potato back and forth.

Timeshares also cause problems at the owner’s death when:

  • The owner never transferred it into his living trust, thus triggering probate for an illiquid asset.
  • The owner became ill before death and stopped paying the annual fees or assessments, and at death she owes thousands of dollars to the timeshare company, for a property no one will buy.
  • The timeshare was properly transferred to a living trust, but no heirs want it and they can’t find a buyer.
  • The post-death transfer of the timeshare was done incorrectly, and eventually the timeshare company tells the heir that they can’t use the week until they re-probate the property and have the transfer done properly. Oh, but they still need to pay the fees and assessments!

Sometimes, abandonment is the only option children have when Mom and Dad leave them an unwanted timeshare, but it has to be done properly to prevent problems.

So, if you own a timeshare, find out whether anyone actually wants it when you die, AND whether they can afford to pay the fees and assessments year after year, even if they lose their job. If not, consider getting rid of it while you’re still alive. If you can.

Other articles you may find interesting:

Can I Protect My Daughter’s Inheritance from Her Loser Husband?

What Happens When Real Estate Is Inherited?

Should I Use a Bank as My Executor Instead of a Family Member?

executor of a will
Choose your executor (personal representative) carefully.

You can choose anybody you like to be the executor of your Will, but consider who will do the best job.

Executors, or personal representatives (as they’re called in Florida), are legally responsible for several tasks, including identifying everything in the estate, collecting all the assets, and paying all the debts and liabilities. When all of that is done, then the personal representative is allowed to make distributions to beneficiaries, in accordance with the terms of the Will.

nj.com’s article on this topic asks “Should I choose a bank to be the executor of my will?” The article explains that there are some advantages in designating a bank as a personal representative.

  • The trust departments of a bank are in the business of managing money and are experienced in administering estates. This typically means they may be able to settle the estate more quickly and efficiently than a family member could.
  • Banks have policies and procedures in place to make certain that the assets are protected from mismanagement and theft.
  • Banks are impartial parties that cannot be influenced by beneficiaries. Impatient beneficiaries can be a big headache for a family member who is asked to be executor. Relationships can deteriorate over the enforcement of the terms of a Will, especially when one sibling is named executor and has the authority over the administration of the estate—perhaps to the detriment of her brothers and sisters.

What are some of the disadvantages? While any executor is entitled to compensation under state laws, family members frequently waive this – especially if they’re also a beneficiary. However, banks do charge fees for serving as executors, and these fees may be higher than you’d expect. Also, many banks won’t serve as executor unless the estate is substantial enough to meet the minimum fees charged by the bank.

But, if you’d prefer not to burden your loved ones with months of time-consuming and aggravating work settling your estate, and family harmony is important to you, consider naming a bank as your executor.

Reference: nj.com (November 5, 2019) “Should I choose a bank to be the executor of my will?”

Other articles you may find interesting: 

What Does an Executor Actually Do?

How Will Jeffrey Epstein’s Estate Be Settled?

Is a Will Contest Worth It?

A Will contest can be expensive and ugly.
Is contesting a Will worth the effort, money, and time? Are you willing to destroy your relationships with those you bring to court?

Is contesting a Will worth the effort, money, and time? This question comes up more frequently than you’d think. The desire to sue an estate sometimes is the result of an unpleasant shock, and at other times, it’s due to anger. However, according to this article from Forbes, “5 Things You Should Know About Contesting A Will,” before you start making revenge plans or hiring the most tenacious attorney in town, take a deep breath. You need to consider some cold hard facts:

  1. Litigation is expensive. I’m going to repeat that again: Litigation is expensive!! Many people will ask if an attorney will take the case on a contingency fee basis—typically a third of what you receive, and he or she only gets paid if you do. Most probate litigation attorneys won’t take a Will contest case on a contingency fee basis because there’s a pretty good risk they won’t get paid. If they do take the case, make sure you have a litigation attorney with experience in estate battles.
  2. Have lots of Rolaids on hand. You’re gonna need them. A Will Contest lawsuit is a rough journey; one that can be full of lies, misrepresentations, and accusations. There may also be a counter lawsuit against you. You’ll probably be interrogated in a deposition, where the opposing lawyer will ask you questions about your relationship with the deceased person and with the other beneficiaries. You will likely be portrayed as greedy, and you may have to testify in court.
  3. Snap decisions are required. Once you hire your attorney, he or she will work with you to develop a strategy for the case. Your attorney may recommend that you file suit immediately and be the first one to the courthouse. Or your counsel may think it best to send a letter to the attorney representing the person you’re suing with a request for information. Then, depending the response, you may decide to file suit. In most cases, you’ll have a limited time to contest the Will. If you don’t do so within that time period, you can’t ever bring a lawsuit. Talk to an experienced attorney shortly after the death.
  4. You’ll probably reach a settlement. Once the Will Contest litigation has begun and the attorneys have had time to exchange information and do some fact finding (in what is known as the discovery process), your attorney will talk to you about the strengths and weaknesses of your case. It may be appropriate at that juncture for one side to present the other with a settlement offer. This would end the litigation without the time and expense of trial. This may be a wise option if you’re tired of fighting and willing to consider a settlement instead of going to trial. Your attorney may also point out weaknesses in your case and advise you to be happy with getting a settlement. That way you can move on with your life. You should approach the settlement like a business decision, and try to keep emotion out of it.
  5. Expect emotional pain. While you may get some satisfaction if you win, you will destroy your relationships with the people you bring to court. If you lose, well, that’s a lose-lose proposition. No matter how big the win, all the underlying emotional issues will still be with you.

Reference: Forbes (May 21, 2018) “5 Things You Should Know About Contesting A Will”

Other articles you may find interesting: 

‘Bye Bye Love’ Rocker Ric Ocasek Cuts Wife Out of Will

Demystifying Probate

What Does an Executor Actually Do?

Executor's checklist
A little planning while a person is still alive can make his executor’s job much easier.

Investopedia’s recent article, “The Executor’s Checklist: 7 Tasks Before They Die,” reminds us that being executor of an estate means significant responsibility. It can be a daunting task, if you’re unprepared. Here are some simple steps to take while the testator is still alive to make the executor’s job easier.

  1. Make Sure You Know the Location of the Will and Other Estate Planning Documents. This is a no-brainer. It makes the executor’s job easier if the testator (the person who executed the Will) keeps the original Will, deeds, partnership documents, insurance policies, or other important papers in an agreed-upon spot, with copies at a backup location.
  2. Retitle Accounts Where Appropriate. If the testator has a spouse, mostly like they want assets to flow directly through to the surviving spouse (if neither spouse has children outside the marriage) or to a trust, so retitle accounts appropriately.
  3. Make a List of the Testator’s Preferences. Another way to make things easy on the executor and the family is to include document your funeral preferences in writing.
  4. Draft a Possessions List and Their Recipients. A big issue that many executors overlook is distributing personal possessions that have little financial value but great sentimental value. Along with the testator, an executor can create a list for the dispersal of personal items, as well as a system of distribution. The testator can include their reasoning for who got what gift. Sharing the list with those involved may also eliminate some hurt feelings. An organized dispersal can make an executor’s job easier and help with issues of fairness.
  5. Create an Annual Accounting Sheet and Updating Schedule. If the testator keeps track of the estate electronically on an annual basis, the executor will have a good idea of assets when it’s required. This e-document will also decrease the time spent searching for that jewelry the testator gave to a granddaughter or tracking down the funds that were supposedly in a now-empty investment account.
  6. Create a Sealed Online Accounts Document. An executor should also have a record of the testator’s online presence to deactivate accounts. This document simplifies work for the executor.
  7. Meet the Relevant Professionals. Executors should be familiar with the accountant, estate planning attorney and other professionals the testator uses. They may have further advice specific to the testator’s situation.

Preparation will greatly decease the odds of any complications when carrying out your duties as an executor. Take these actions while the testator is still alive to help make certain that the executor carries out the testator’s wishes.

Reference: Investopedia (July 11, 2019) “The Executor’s Checklist: 7 Tasks Before They Die”

Other articles you may find interesting:

What’s the Difference Between a Quitclaim Deed and a Warranty Deed?

Titling Property Correctly for Your Estate Plan

‘Bye Bye Love’ Rocker Ric Ocasek Cuts Wife Out of Will

Ric Ocasek and wife Paulina
Ric Ocasek and his wife, Paulina Porizkova, filed for divorce after 28 years of marriage.

The language in the Will was very clear, according to the article “Cars singer Ric Ocasek cuts supermodel wife Paulina Porizkova out of will” from Page Six. There was no provision for his wife Paulina, since they were in the process of divorcing. He added that even if he died before their divorce was finalized, she was not to receive any elective share “… because she has abandoned me.” [Update: Porizkova is contesting Ocasek’s Will.]

It was Porizkova who found Ocasek’s body in September, while bringing him coffee as he recovered from recent surgery. The couple had two sons together and had called it quits in May 2018, after being married for 28 years. They met on set during the making of the music video for the Cars’ song “Drive.”

A filing with Ocasek’s Will stated that his assets included $5 million in copyrights, but only $100,000 in tangible personal property and $15,000 in cash. The document did not detail the copyright assets.

That may seem like a small estate for someone with Ocasek’s fame. However, an attorney who examined the document told The New York Post that it was likely the Cars’ frontman probably had more assets protected through trusts.

Like other high-profile performers who have considerable assets and who are savvy about finances, it’s possible that he has many millions of dollars. However, they will not pass through the public probate process because proper planning was done. That’s why people use trusts, especially when they’re public figures.

The Cars’ singer also seems to have left two of his six sons out of the Will. But the children he had with Porizkova were not left out of the Will.

It’s possible that the sons who were left out of the Will were compensated through other means. There may have been trusts set up for them, or perhaps life insurance proceeds.

The document indicates that Ocasek signed his Will on August 28, less than a month before his death.

Ocasek died of heart disease on September 15. He also suffered from pulmonary emphysema.

Mario Testani, his friend and business manager, is named as the executor of his Will.

Ocasek’s situation appears to show how trusts and other estate planning methods can be used to maintain an individual’s privacy, even if their other assets pass through a Will.

Reference: Page Six (Nov. 7, 2019) “Cars singer Ric Ocasek cuts supermodel wife Paulina Porizkova out of will”

Other articles you may find interesting:

What Happens to Eddie Money’s Money?

Prince’s Estate Battle Drags On

How Will Jeffrey Epstein’s Estate Be Settled?

Jeffrey Epstein
Jeffrey Epstein

Jeffrey Epstein’s last will and testament is dated August 8—just two days before he was found dead in a jail cell. Whether he killed himself or not [insert your favorite Facebook meme here :)], he left a big mess. His estate is estimated to be worth $577 million, including fine arts and collectibles that are still to be valued. Epstein also created a revocable living trust for his property.

CNBC’s recent article, “Here’s why a bitter legal battle could be ahead for Jeffrey Epstein’s estate,” reports that a lengthy fight is coming as Jeffrey Epstein’s estate addressees the legal claims over the distribution of his assets. The 66-year-old was facing federal charges of sex trafficking of minors and sex trafficking conspiracy.

Attorneys believe there will be a long legal fight, as alleged victims file claims against the money manager’s estate. The Epstein estate will be in the middle of lawsuits for a long time – until all of the plaintiffs are paid.

Let’s look at some the issues that heirs, plaintiffs, and attorneys will face.

  1. Creditors get paid first. Jeffrey Epstein’s will tells his executor to pay from the estate several costs, including funeral and burial expenses, administration costs and “all of my debts duly proven and allowed against my estate.” The will then directs the executor to give all of his property after these payments and distributions to The 1953 Trust, which was also established on August 8. The trust distributions aren’t known, because the trust document wasn’t attached to the will.

This means creditors, including plaintiffs of the many lawsuits against Epstein who receive a judgment in their favor against the estate, will be paid before property passes through to the heirs.

  1. All trusts are not equal. Some trusts may provide creditor protection, but not all trusts offer the same level of protection. Irrevocable trusts can’t be changed by the grantor once they’ve been established. When you transfer the assets to this trust, they’re out of your estate and you save on taxes at death. You’ve given up control of the asset—that’s why these trusts offer creditor protection. However, revocable trusts can be revised by the grantor during his or her life. Because the terms can change, the assets are still deemed to be owned by the grantor—making them subject to estate taxes and seizure from creditors.

You don’t save on estate taxes when you create a revocable trust, and Epstein’s trust is revocable. And, although moving assets to an irrevocable trust may protect them from creditors, it won’t work if you’re facing legal claims.

  1. Where you live is key. Jeffrey Epstein was a resident of St. Thomas in the U.S. Virgin Islands, but his will mentions five properties, including a mansion in New York City. The other properties, all owned by corporations of which he owns shares, are in New Mexico, Florida, Paris and the Virgin Islands. New York is known to chase down well-to-do residents who claim to live in tax-free havens. They conduct non-residency audits and hit them with taxes. Big estates can mean a lot of revenue for New York.

There is a chance New York could seek its share of state income and estate taxes. Where you live is answered by looking at facts and circumstances, including voter’s registration, driver’s license and the location of family and belongings. Just spending 183 days in your “new” state alone, isn’t sufficient to protect it from an audit from a high-tax state.

Reference: CNBC (August 24, 2019) “Here’s why a bitter legal battle could be ahead for Jeffrey Epstein’s estate”

Other articles you may find interesting:

Amy Winehouse’s Ex Filing a $1 Million Claim

What Happens to Eddie Money’s Money?

Handwriting Analysis in Aretha Franklin’s Estate

Aretha Franklin
Aretha Franklin, the Queen of Soul, left two conflicting Wills.

When Aretha Franklin died in August 2018, her family thought she didn’t have a Will. However, then they discovered two handwritten Wills – one in a locked cabinet and the other under a couch cushion – that gave conflicting instructions on how her estate should be handled. One of those Wills is now being examined by a handwriting expert to see if it’s the most recent valid Will. That determination will help decide who controls most of her finances and how her songs and likeness can be used in the future.

Fortune’s recent article, “How a Forensic Handwriting Expert Will Examine Aretha Franklin’s Will,” reports that in the Will thought to have been written in 2014, Franklin named her youngest son, Kecalf, as the executor of the estate. It looks like she first wanted another son, Teddy, to be in charge. However, his name is crossed out, with Kecalf written on the same line, followed by the name of Franklin’s niece, Sabrina Owens, whose name is also crossed out.

Now, in the middle of the dispute over the estate’s control, Kecalf has hired a forensic document specialist, Erich Speckin, to affirm to the court that the Will was, in fact, written by Franklin in 2014 and hasn’t been altered since. The other parties—Owens, who’s the current executor as decided before the discovery of the Wills; Teddy; and another son, Clarence—can also enlist their own handwriting experts, if they wish.

There are several steps an expert will take in making this determination. What Aretha Franklin left behind is known as a “holographic” Will, meaning that she wrote it entirely by herself, then signed and dated it. Holographic Wills are not valid in all states (such as Florida), but are valid in Michigan, provided that “material portions are in the testator’s handwriting.”

Because handwriting can change as a person ages and declines in health, the expert will try to compare the writing in the Will to as many contemporaneous sources as he can find. This may include Franklin’s lyrics, handwritten notes, birthday cards, or any other writing she might have done. The expert will use these to compare and look for anomalies. In most cases of fraudulent Wills, a forger will type out the text and forge a signature because writing out a full page in someone else’s handwriting is nearly impossible.

Once Speckin’s findings are revealed, the next skirmish in the estate battle will be based on his findings and the parties’ ability to come to an agreement. Kecalf now has only the support of his brother, Edward, in his bid to become the executor.

This is just one more reminder that everyone should have a valid Will at all times. Work with a qualified estate planning attorney to be sure make your Will is much clearer than the Queen of Soul’s.

Reference: Fortune (August 13, 2019) “How a Forensic Handwriting Expert Will Examine Aretha Franklin’s Will”

Other articles you may find interesting:

Billionaire Conrad Prebys’s Son Gets $15M after Being Disinherited

Actor Robert De Niro’s Bad Prenup

Demystifying Probate

Death and probate
Probate is the orderly distribution of a deceased person’s assets after all lawful debts are paid, and it is overseen by a judge.

Probate can be avoided with proper estate planning.

The Street’s recent article on this subject asks “What Is Probate and How Can You Avoid It?” The article looks at the probate process and tries to put it in real-life terms.

Probate is an estate administration process that works within a probate court with a probate judge presiding over the proceedings. Usually, surviving families and other interested parties initiate the process to address issues relating to the deceased individual’s estate settlement. These include:

  • The handling of the deceased’s valid will;
  • Properly citing and categorizing the deceased’s assets;
  • Appraising the deceased’s estate and property;
  • Paying off any of the deceased’s existing debts; and
  • Distributing the deceased’s property to those directed by the will (or, if there’s no will, the probate court will direct the distribution of estate assets, according to the laws of intestacy).

The personal representative (also known as an executor) handling the deceased’s estate will typically start the process with the help of a probate attorney. Here are the basic steps:

File a Petition. The estate’s personal representative will file a request for probate where the deceased resided.  Once all the required paperwork is in order, the probate judge will officially open the case.

Notice. The personal representative must send a legal notice to all applicable beneficiaries, heirs, debtors, and creditors that the deceased’s estate is officially in probate.

Inventory Assets. The personal representative will then collect, list, and provide a value for all of the deceased’s assets and supply this to the court.

Pay the Bills. The personal representative will need to pay all outstanding debts owed by the estate.

Complete Any Tax Returns. The estate may also have existing tax returns that need to be filed. An accountant can be hired by the personal representative to work on this, or the personal representative may choose to file the taxes on his or her own.

Pay the Heirs. The personal representative can now distribute the remainder of the estate to any heirs, according to the will’s instructions.

Close the Estate. Finally, the personal representative will file paperwork with the court and file to close the estate.

An experienced estate planning attorney licensed to practice in your state will be able to explain what strategies are used to avoid probate, how to remove certain assets from the process, or whether it needs to be avoided at all. In some regions, probate is swift, while in others it is long and tiresome. A local estate planning attorney is your best resource.

Reference: The Street (July 29, 2019) “What Is Probate and How Can You Avoid It?”

Other articles you may find interesting:

Does Having a Will Avoid Probate?

What Happens To Mom’s House When She Dies?