TECHNICAL ASPECTS OF PROBATE

As with any legal proceeding, there are technical aspects to probate administration:

A Petition to appoint a personal representative may need to be filed and letters of administration or letters testamentary obtained.
Creditors must be notified and legal notices published at a cost to the estate.
Executors/Administrators of the estate must be guided in how and when to distribute assets and how to take creditors' rights into account.
There are time factors involved in filing and objecting to claims against the estate.
There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
Real estate or other property may need to be sold to effect correct distribution of assets pursuant to the will or to pay debts.
Some assets may simply need to be transferred from the deceased to his or her beneficiaries. Other assets may have pay on death or transfer on death designations, which avoids probate.
Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
Costs of the administration of the estate including ordinary taxes such as income tax on interest and property tax is deducted from assets in the estate before distribution by the executors of the will.
The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.

STEPS OF PROBATE

After opening the probate with the court, the personal representative (executor or administrator) collects and inventories the decedent's property. Next, he pays any bills, debts, and expenses of the estate, and any taxes due, including property and estate taxes, if the estate is found to be taxable at the federal or state level. Finally, he distributes the remaining assets to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state. Upon final distribution of all assets, the executor or administrator is relieved of his/her fiduciary duties.

Any person may challenge any aspect of the probate administration, such as a challenge to the validity of the Will, known as a contesting the Will, or a challenge to the person seeking appointment to serve as personal representative. A person may also challenge the identity of the heirs at law, and challenge whether the personal representative is properly administering the estate. Issues of paternity can be disputed among the potential heirs of intestate estates, especially with the advent of inexpensive DNA profiling techniques. In some situations, even biological heirs can be denied their inheritance rights, while non-biological heirs can be granted inheritance rights.

ESTATES WITHOUT A WILL

Upon the death of a person who dies intestate (without a valid legal Will) the court will appoint an administrator who performs similar duties to an executor of a Will. The court process for administration of an estate is very similar to that required to probate a Will and have an executor appointed, however there is often additional publication of notice of the proceeding required in the local newspaper before an administrator will be appointed. If no objection is file, the court will usually grant “Letters of Administration” to the person so entitled instead of “Letters Testamentary”.

ESTATES WITHOUT KNOWN HEIR(S)

For some estates when it is not clear who are the next-of-kin, probate research may be required to find the entitled beneficiaries. If the rare event that absolutely no heirs can be found, the assets may escheat - which means they are forfeited to the state.

Because the process of administrating an estate where there is no Will does not ensure that your assets will be distributed as you like, it is essential to have a valid Last Will & Testament.

A YEAR’S SUPPORT

CONDITIONS FOR YEAR’S SUPPORT

The surviving spouse of the decedent can petition for Year’s Support provided he or she has not re-married after the decedent’s death. The decedent’s minor child(ren) may apply for Year’s Support if the following conditions are met:

A child must be under age 18.
The child must not be married
The child must be the child to the decedent. (This includes adopted children or children born out of wedlock but does NOT include step-children of the decedent.)

A minor child’s surviving natural or adoptive parent, legal guardian, or guardian ad litem may file a Petition for Year’s Support on behalf of the child. Also, a Year’s Support may be granted whether or not the decedent had a valid Will.

In order to receive the grant of a Year’s Support, the spouse or child(ren) must file a petition within 24 months of the decedent’s death. This petition must be filed in the Probate Court of the county in which the decedent was domiciled at the time of his or her death.

After the petition is filed, the Probate Court will publish notice of the filing of the Petition in the county newspaper. The court will also mail a copy of the petition to certain interested parties identified in the petition. If any of these persons are minors or incapacitated adults, the Court will appoint a guardian ad litem for those persons.

If any objections to the Petition are filed, the Probate Court will hold a hearing to determine how much property, if any, will be awarded as Year’s Support. If no objection is filed, the Probate Court will award the property requested in the petition. The Probate Court may make separate awards of property to the surviving spouse and to the minor child(ren).

ADVISING & ASSISTING A PERSONAL REPRESENTATIVE

When representing the Personal Representative of an estate, the probate lawyer may advise and assist with the following:

Determining, locating and securing both probate assets and non-probate assets
Obtaining date of death values and appraisals of all of the decedent's assets
Preparing and filing all documents required by the probate court in a timely manner
Collecting life insurance proceeds
Rolling over and making appropriate elections with regard to retirement plans, including IRAs and 401(k)s
Advising on the payment of the decedent's final bills and outstanding debts
Keeping track of the estate checking account
Determining whether or not any assets should be set aside for a surviving spouse in a Credit Shelter Trust
Determining if any estate taxes and/or inheritance taxes will be due at the federal and state levels, and, if so, determining how these will be paid
Addressing income tax issues
Settling disputes among Personal Representatives and beneficiaries
Assisting with the sale of estate property
Requesting court permission for various actions as required by applicable state probate laws
Retitling the decedent's real estate into the names of the estate beneficiaries if it is not being sold
Distributing the balance of the decedent's assets to the beneficiaries after the payment of bills and taxes
Filing any required inventories and annual reports as may be required by the court
Ensuring the release of the Executor/Administrator of their fiduciary duties and closing the estate