Probate is an area of law that most people know very little about; however, it is Attorney Daniel J. Potucek’s main area of practice. Generally, attorneys do not inform and educate the public about Probate and Estate Administration. People are confronted with the reality of transferring the assets of the Decedent to their Beneficiaries only when a family member dies. It is difficult dealing with the death of a loved one, and the probate process can add to the stress of the situation.
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Probate is the process in which the court supervises the transfer of the estate assets, such as real property, houses, money, vehicles, or whatever else the Decedent owned while living, to the Decedent’s Beneficiaries or Heirs. Daniel gives his clients the individualized attention necessary to ensure that the probate process goes smoothly and to allow clients time to cope without the extra worry about the distribution of their loved one’s estate.
The objective of probate is to transfer ownership or title of the Decedent’s property to a surviving family member, friend, or other entity. The transfer of ownership or title is done through the court Probate process, whether an individual dies with or without a Will, and leaves no other governing document such as a Trust. The recipient of a particular asset depends upon a variety of factors such as the terms in a Will identifying the recipient, state statutes, degree of kinship, character of the assets, etc.
If the individual dies with a Last Will and Testament, property will be left to the Beneficiary named in the Will. If the person dies without a Will, the property will be left to the Decedent’s heirs at law, usually a spouse, children, parents or siblings. Probate is a court proceeding for passing property from a deceased person to the Beneficiaries or heirs of the decedent.
The property of the decedent is referred to as the estate. A personal representative of the estate must be appointed. Because of the complexity involved in the probate process and the specific rules it employs, most people use a qualified attorney to handle the administration of an estate.
Among the duties that must be performed in probate administration are:
- A last will and testament, if any, will need to be located. If found, it must be filed with the Clerk of the Court within 30 days of the decedent’s death;
- All persons named in the will must be notified of the estate, and the date and time for hearing must be given;
- All heirs of the decedent must be located and notified of the hearing;
- A search for all assets of the decedent, including financial account, real estate, vehicles, personal property, stocks, bonds, contracts and other assets. An inventory of all assets must be made and filed with the court;
- A search for all debts must be conducted, including the expenses of final illness and funeral. A list of all debts must be filed with the court, and notice must be given to all creditors;
- Assets must be sold, either to pay the debts of the decedent or to distribute to heirs. Court approval for the sale of real estate is often necessary;
- A federal and state tax identification number is needed for the estate;
A final income tax return must be filed for the decedent, and an income tax return must be filed for the estate, if it earns any income during the time in which it is administered;
- An estate tax return must be filed if the decedent left substantial assets;
- The personal representative must determine the amount of each debt and how much should be paid to each creditor. In case of a dispute, the personal representative may have to schedule a hearing with the court;
- The personal representative must determine who is to receive the remaining assets of the estate, either by the terms of the will or by state law. If a dispute arises, a court hearing may be necessary;
- A final accounting must be provided to the court and approved, itemizing all income, debts, sales, and distributions of the estate.
Exceptions to Probate
Not all property requires probate to transfer title. Jointly held property will transfer to the remaining joint tenant. Life insurance and retirement accounts naming a specific beneficiary will not require probate. Assets previously transferred to a trust by the decedent normally do not require probate.
Not all estates need to go through probate. Estates with a value of less than $20,000 and without real estate may transfer the property of the decedent through an Affidavit of Entitlement. This document will normally permit property held in financial institutions to be released to the heirs, or title to vehicles to be changed.
In cases where the property of the decedent is less than $100,000, the beneficiary may petition the court to dispense with a full administration of the estate and simply distribute the property.
If the estate is between $100,000 and $200,000, a beneficiary may request Summary Administration. The inventory of the estate, notice to creditors, approvals of sale of real estate, distribution to heirs and approval of attorney fees is handled in with various papers filed with the Probate Court.
The Role of the Probate Attorney
Many of these items are difficult tasks for one not familiar with the probate process. A mistake in preparing the proper documents could cause delay in eventual distribution, or may cost the estate to lose income. For these reasons, most cautious persons choose to employ a qualified attorney.
The estate attorney will usually prepare all court documents on behalf of the personal representative, may prepare tax returns for the estate, or hire a tax professional, and will provide legal advice to the personal representative on how to proceed.
In addition, the probate attorney may advise on the sale of assets, the tax consequences a sale may bring or the method of sale most likely to bring the highest return. The estate attorney will have a working knowledge of the different ways to proceed on the decedent. The attorney will advise as to the most efficient procedure allowed by law. The attorney will represent the personal representative at all court hearings.