Most matters the probate courts handle, like admitting wills and assigning executors, are standard operating procedures and go uncontested. However, legal contests arising from a person’s death or mental incapacity may lead to probate litigation over powers of attorney, will and trust contests, guardianships, conservatorships, and living wills.

Common Legal Concerns in Probate Court

Some common problems leading to probate litigations include:

• Will contests – The validity of a will can be challenged. Interested parties may dispute the will’s authenticity, allege undue influence or fraud, or argue that the person who made the will (testator) lacked the mental capacity to create a valid will.
• Estate administration disputes – Disagreements may arise among beneficiaries, executors, or administrators regarding the management and distribution of estate assets. These disagreements can include allegations of mismanagement or conflicts over the interpretation of the will or trust provisions.
• Claims against the estate – Creditors or individuals who believe they have a rightful claim to the deceased person’s assets may file claims against the estate. Claims can include outstanding debts, unresolved contracts, or disputed property ownership.
• Guardianship or conservatorship disputes – If there are disputes over the appointment of a guardian for a minor or an incapacitated adult or concerns about the actions of an appointed guardian or conservator, it can result in probate litigation.
• Breach of fiduciary duty – Executors, administrators, trustees, and other fiduciaries are legally obligated to act in the best interests of the estate and its beneficiaries. Allegations of misconduct, self-dealing, or failure to fulfill these obligations may lead to litigation.
• Document interpretation – Disputes may arise over the interpretation of a will, trust, or other estate planning documents. These conflicts can involve disagreements about the intended meaning of certain provisions, the scope of powers granted to trustees or executors, or the distribution of assets among beneficiaries.
• Family disputes – Family dynamics can often lead to probate litigation, especially with strained relationships, blended families, or unequal distributions of assets. Sibling rivalry, disputes with former spouses, or disinheritance can result in legal challenges.

Individuals marrying multiple times without a prenuptial agreement are also likely to incite probate litigation upon their death. Life insurance trusts can be a valuable way to separate the interests of the decedent’s spouses and children.

Probate, Estate, and Trust Litigation Attorneys

If you anticipate probate litigation, an experienced estate administration attorney can provide guidance and explain your rights and options to prevent future problems. If you are involved in a dispute, a probate litigation attorney can help you navigate the legal system and resolve it. There are also attorneys who specialize in conflicts with trust administration and litigation.

It’s essential to consider your legal situation and an attorney’s experience, reputation, and track record when handling similar matters. It’s also crucial to feel comfortable working with them.

Early Steps in Probate Litigation

In probate litigation, your attorney plays a key role in representing your interests while navigating the legal process. All things begin with an initial lawyer consultation to discuss your case’s details, goals, and concerns. Your attorney will evaluate the strength of your claims or defenses and explain the legal process, potential outcomes, and available strategies to achieve your objectives. Most states have strict statutes of limitations, so the earlier you contact a probate litigation lawyer, the better.

Your attorney will then thoroughly research your case’s relevant laws, precedents, and regulations. They will analyze the facts and circumstances to develop a legal strategy tailored to your situation. All relevant documents will be gathered and reviewed, including wills, financial records, trusts, and other evidence relating to the dispute. Your attorney will then prepare and draft legal documents like complaints, petitions, answers, motions, and discovery requests.

Probate Court Processes

Probate litigation hearings and trials are usually held in the county probate court where the decedent died. The probate litigation attorney you select should be familiar with the county probate court where the case is being tried.

Your attorney will engage in the discovery process by gathering evidence, documents, and depositions from other parties. They will also respond to discovery requests from the opposing party. Each side will advocate for their client’s interests, work to reach a favorable settlement if possible, and advise on the merits of accepting or rejecting settlement offers.

Trial preparation and representation will occur if the settlement phase fails. Your lawyer will prepare you for trial, make legal arguments, examine and cross-examine witnesses, and present your case to the court. Throughout the process, your attorney will help you make informed decisions regarding the direction of your case.

Probate court can illicit high emotions and tense interactions that greatly disrupt family relationships and leave the estate open to creditor lawsuits as well.

Our estate administration and probate litigation attorneys help prevent estate-related contests through proper estate planning and significantly reduce the likelihood of probate litigation in the first place. Should you find yourself in need of an experienced litigator, we can represent you. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.

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Estate administration typically involves several steps, including the following:

• Probating the will
• Obtaining a death certificate
• Obtaining a tax identification number for the estate
• Identifying and locating the deceased person’s assets, including bank accounts, investments, personal property, real estate, and other assets
• Notifying creditors and paying any outstanding debts, taxes, and other liabilities from the assets of the estate
• Obtaining a court-issued document called letters of testamentary or letters of administration, giving the personal representative or executor the authority to act on behalf of the estate
• Inventorying and appraising the assets of the estate and keeping accurate records of all transactions
• Filing any necessary tax returns and paying any taxes due on the estate
• Distributing the estate’s assets to the beneficiaries according to the terms of the will or state laws of inheritance
• Closing the estate by submitting a final accounting to the court and obtaining court approval to distribute the assets of the estate

The process may vary slightly depending on the estate’s size and complexity and whether the case is probated or non-probated. A probate court action may be necessary for large estates to ensure the legality and validity of the will and to oversee the distribution of assets. Non-probated estates are usually smaller and have fewer legal requirements.

Estate planning can help avoid probate and its complications, and in some cases, estate administration can occur outside of probate court (non-probate administration). It is best to consult with an estate planning attorney or probate lawyer who can help navigate the specific laws and regulations of the relevant state.

State Law Governs Estate Administration

With very few exceptions, estate administration is governed by state law in the US. Each state has unique laws and regulations regarding the probate process and the distribution of a decedent’s assets. These laws can vary significantly, so it is important to consult with an estate planning attorney or probate lawyer familiar with the laws of the state where the decedent lived.

At the federal level, the estate administration must comply with IRS Codes that address the following:

• Estate taxes
• Gift taxes
• Generation-skipping transfer of assets (gifting to grandchildren)
• Special valuation rules

The state probate process includes appointing a personal representative, inventorying and appraising assets, and distributing assets to beneficiaries. State laws may also dictate the procedures for challenging a will or contesting the appointment of a personal representative.

Probate

The length of time it takes to administer an estate can vary depending on the estate’s size and complexity, the number of beneficiaries, and whether or not there are disputes or challenges to the will.

In general, the probate process can take several months to a year or more to complete. If the estate is small and there are no disputes or challenges to the will, the process may go faster. However, if the estate is large and complex, or there are disputes or challenges to the will, the process may take longer. The non-probate process is usually faster and can take several weeks or months to complete, so estate planning often centers on minimizing the potential for probate.

It’s important to note that some states have laws that set a time limit for the probate process and asset distribution. Consult with a probate attorney familiar with the laws of the state where the decedent lived to get an estimate of the time frame.

Estate administration doesn’t conclude with the distribution of assets if the estate has ongoing financial obligations such as trust administration, paying taxes, etc., which may prolong the administration.

Potential Problems

Several problems can occur when administering an estate, including:

• Beneficiary disputes – If the decedent’s will is unclear or there are multiple beneficiaries, disputes may arise over who is entitled to receive what assets.
• Challenges to the will – Challenging a will can occur for various reasons, such as lack of capacity, undue influence, or fraud.
• Lack of assets – If the decedent’s debts and liabilities exceed the value of their assets, there may not be enough to pay off creditors and beneficiaries.
• Probate process delays – The probate process can be time-consuming and may create delays due to missing or incomplete documentation or beneficiary disputes.
• Tax issues – The estate may be subject to taxes at the federal and state level, which can be complex and require the help of a tax professional.
• Not following the law – The personal representative may not follow the state laws and the will’s instructions while administering the estate, which can lead to legal issues.
• Not keeping accurate records – Not keeping accurate records of all estate transactions and assets can lead to confusion and beneficiary disputes.
• Not timely closing the estate – Not closing the estate as quickly as possible can lead to additional costs, legal issues, and disputes among beneficiaries.

It is important to seek the assistance of an estate or probate attorney to administer the estate and address issues that arise properly.

Closing the Estate

Estate administration concludes when:

• The personal representative distributes all assets according to the terms of the will or state laws
• The personal representative closes any financial accounts, such as bank and investment accounts, that belong to the estate
• The personal representative files all final tax returns for the decedent and the estate
• The personal representative files a final report with the probate court, including an accounting of all assets and debts of the estate, and any beneficiary distributions
• The personal representative obtains court approval and discharge, closing the estate

Once these tasks are complete, the estate administration process concludes, and the deceased person’s assets have been properly and legally distributed according to the decedent’s wishes or state laws.

While estate administration has a general template and set of rules to follow, each estate is unique, and ensuring all formalities are properly addressed can be daunting. Meeting with a probate or estate planning attorney to structure an approach and create a list of tasks can help a personal representative track all the necessary elements. A systematic and organized approach with proper attorney oversight can make estate administration run smoothly.

We hope you found this article helpful. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.

The post How Does the Estate Administration Process Work? appeared first on Seif & McNamee.

Do You Have a Will?

Many Americans will face the challenges of their loved one dying without a will. According to Think Advisor, a recent survey finds that 59 percent of men and 72 percent of women do not have a will or estate plan. In another survey, CNBC finds a mere 33 percent of Americans have properly established estate plans. Many individuals feel they do not own enough to necessitate writing a will or negatively perceive estate planning as too complex and expensive. They leave their grieving loved ones to accept the court’s decisions regarding their loved one’s inheritable assets and possessions.

Resolving the Estate

The probate court judge’s primary duty is to oversee the lawful resolution of the decedent’s financial affairs. They will follow state law to select a personal representative as the estate administrator. There is technically no executor as no will was left to execute, yet the estate still must be legally resolved. A loved one can begin the intestacy process by going to the decedent’s county probate court, filing a death certificate, and petitioning to begin probate. They will typically nominate themselves as the administrator, but the probate court judge has the authority to name the estate administrator.

Assets Falling Outside of Probate and the Role of Administrator

Like dying with a will, dying intestate does not affect jointly held accounts and those assets with a designated beneficiary or payable-upon-death status. These may include money market, savings and checking accounts, IRAs, retirement accounts, certificates of deposit (CD), life insurance, and annuity policies. The estate administrator, as appointed by the probate court judge, will perform the functions as required by state law, including:

• Identify and give notice to estate beneficiaries and other interested parties
• Give notice to creditors
• Give notice to all government agencies from which the decedent received benefits
• Pay debts and fees, including state and federal taxes
• Inventory assets
• Distribute assets
• Close the estate

Under the law, family members may inherit the remaining assets after payment of the estate’s final debts through the estate administration process. The handlers of the administration process may be one person, two or more individuals, a bank, or a law firm. In cases of estates under a certain dollar amount, the administrator may petition the probate court for a simplified version of the probate proceeding.

Standard Probate Proceedings

Though some of the filings and processes are different than probate with a will, the probate court is still actively involved if your loved one dies intestate. The probate court processes may:

Resolve or prevent conflicts – A probate court judge will decide how to answer any legal questions that may arise related to state law. When someone dies without a will, family members often claim certain assets or possessions of the decedent, citing a verbal promise. The estate administrator can avoid becoming the lightning rod of controversy for decision-making since the probate judge makes the final decision. Although this is no guarantee heirs won’t fight things out in court, in most cases, intestate succession laws prevent these disputes.

Legally Transfer Title – Real property like a house, car, truck, or boat, without joint tenancy with right of survivorship or held in trust, requires the probate court to transfer the name on the title. In cases of real estate owned by a couple or shared personal property in a community property state, titles may transfer automatically to the surviving spouse.

Cut off claims by creditors – Once the probate court process starts, creditors have a certain amount of time to bring a claim against the estate. Estate administration can reduce this timeframe in some states to as little as three months so that a creditor can’t approach a family member looking for money months or even a year into the future.

Take money from accounts – If the decedent’s financial accounts are not jointly held or do not have named beneficiaries, or payable-on-death status, a family can’t access the funds in the accounts without the probate process and approval.

Probate Laws Vary by State

In cases of dying intestate, the probate process is similar among all states, but state laws still vary. If you are administering an estate without a will, an estate planning attorney or probate lawyer can help you understand the differences in the probate process. Getting professional legal advice can be well worth the money spent to distribute the decedent’s assets according to state law and properly close the estate.

We hope you found this article helpful. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.

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