There can be terrific grief and pain at the loss of a loved one. When you add the extra stress of dealing with the financial and legal issues that will occur at death, many people become overwhelmed and don’t know where to turn.
At Stapleton Elder Law, we have helped many families at this stressful time, usually assisting the executor of the estate.
The fundamental duties of a personal representative (also known as an "executor”) of an estate are similar to those of a trustee–protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your ducks in a row and prepare for court as best you can.
Read on for some essential reminders about the probate process and how legal representatives can assist with the process.
A personal representative is required to prepare and file an inventory and a list of heirs after the representative is qualified by the court. This inventory should detail all of the assets of the estate (note: some assets may pass outside of the probate process). The property must be valued and even appraised as necessary. In addition to money owed by the estate, there may also be money owed to the estate.
The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate's assets and claims. Beneficiaries want to know what they might inherit and creditors want to know if there is enough money to get paid. There are strict statutory timelines that must be followed.
One thing to realize if you are a beneficiary is that your inheritance is subject to the estate's administration, and may take a considerable period of time. The representative must settle the decedent's debts and claims before he or she can make any distribution of the assets.
As noted above, the representative also must to keep the administration process moving along by settling all of the decedent's debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper and sending written notice to known secured creditors by certified mail. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent's bills immediately, which is not necessarily good. Some states provide "permissive notice" to unsecured creditors and this may avoid paying some unsecured claims.
The representative must keep the beneficiaries in the loop, to include providing each with notice via mail that the will has been admitted to probate and a copy of the will, if requested. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for copies of the accounting made by the executor.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is able to sell any property that is perishable or would deteriorate in value during the probate process.
As you can see, being a representative can be a heavy burden, and should not be undertaken without legal representation. In extreme circumstances, the representative may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with many other details.
As you can see, there is a lot of pressure on the personal representative. As a result, it is essential that the representative work in concert with our firm, as we are experienced estate planning attorneys who can guide the representative or beneficiaries throughout this process...while avoiding potential landmines.
It’s important to note, though, that much or all of the probate process can be avoided through proper pre-planning using living trusts and other estate planning tools. Contact our offices and attend one of our informative free workshops to learn more about how you can plan ahead to avoid probate.