By Robert J. Silverman, Attorney at Law
Probate – a court-supervised estate administration proceeding – is generally required for administering the estates of people who die without a funded Revocable Living Trust.
Attorneys and the press constantly remind people about the disadvantages of probate. It is typically a long and inconvenient process that takes place at the most inopportune time – when loved ones and family members are grieving. Unfortunately, like many legal processes, it is difficult and extremely time consuming for a layperson to navigate the myriad requirements, legal filings, etc. Choosing a sensitive, diligent and experienced probate attorney can be a tremendous help and relief during this difficult time.
What is Probate?
When a person dies with a Will or without a Will, but has no Revocable Living Trust, a Probate is usually required. A Probate is, quite simply, a court-supervised estate administration proceeding. The Probate Court judge oversees the process, admitting the last, valid Will, if the decedent had one, and working with the appointed Executor (person designated in the decedent’s Will as the “personal representative” of the estate) or Administrator (if no Will exists, the person who petitions the court to manage the estate) to administer the estate in an orderly manner. The law requires that the personal representative (typically, with the assistance of professionals, such as a trust/estate attorney, C.P.A. and others) satisfy many substantive and procedural requirements. The proceeding typically takes at least 8-9 months to complete and often lasts more than a year. An attorney is nearly always hired to help the Executor or Administrator fulfill many, important substantive and procedural requirements during this long process.
Under what circumstances is Probate required?
Generally, a Probate is required when: a) a person dies with assets that have an aggregate gross value exceeding $150,000; and b) the decedent did not have all or substantially all of his or her assets titled in a Revocable Living Trust and/or in joint accounts and/or in accounts or financial instruments, such as retirement plans and life insurance policies, in which the decedent has on file with the associated financial institution a valid beneficiary designation and such beneficiary(ies) is alive at the time of administration. *
* There are often significant legal, tax and other disadvantages, of trying to do estate planning (attempting probate avoidance) via joint accounts, beneficiary designation; and doing intra-family transfers of real estate.
What does the process of Probate entail?
The personal representative, in conjunction with the Probate attorney, has many important obligations. These include, but are not limited to: inventorying and arranging for the appraisal of estate assets; notifying and paying bona fide creditors of the estate; ensuring that appropriate tax returns are prepared and filed, and tax payments are made; keeping the estate beneficiaries informed; preparing an accounting of the estate’s income and expenses; managing the estate assets prudently during the pendency of the probate; and ultimately distributing the assets to the rightful beneficiaries when and in accordance with a court order that is issued at the close of the Probate.
This article is intended to provide information of a general nature, and should not be relied upon as legal, tax, financial and/or business advice. Readers should obtain and rely upon specific advice only from their own qualified professional advisors. This communication is not intended or written to be used, for the purpose of: i) avoiding penalties under the Internal Revenue Code; or ii) promoting, marketing, or recommending to another party any matters addressed herein.