Sucessor Trustees - Probate - Inheritance
If you are here to learn about the probate process after the passing of a loved one, we first want to say that we are very sorry for your loss.
We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
Here For You
Trying to handle the technical details during a time of loss can be a challenge. We are here to help.
We want to help you through this process and take as much off your hands when it comes to locating assets, paying bills and making sure your loved one’s assets get to the right people without court or conflict.
If your loved one created a trust prior to their passing and all of his or her assets are in trust or named the trust properly as the beneficiary, then the good news is that we can begin the estate administration process completely outside of probate court.
If you anticipate needing to go to court and start a probate, we will help you navigate it with the least about of hassle and expense.
Supporting You During A Difficult Time
Thank you for being here. We know you have a lot of options when it comes to choosing the right attorney for you. We are here to support you however we can during any time of burden or loss.
We will help you figure out the first steps.
Who Do We Help?
We work closely with the deceased’s family members, beneficiaries, other heirs and trusted advisors to ensure the deceased’s trust assets are inventoried, debts are paid and the assets are distributed correctly with the least amount of burden and taxes.
Often it is unclear in the begining what exactly needs to be done. The deceased person may have had a trust, but may also have assets that were not in the trust that need to be probated. Some assets are in banks or other institutions that have pay on death designations.
We've created an initial consultation process that will get you organized and help put the pieces together. After you meet with us you will feel like you are on solid ground and know the path forward.
We also have years of experience in real estate taxes and will help you navigate how to minimize taxes for the heirs.
How Does Trust Administration Work?
Every trust has named a “trustee.” The trustee’s job is to ensure that trust assets are handled properly and the trust terms are complied with.
Serving as a trustee entails a huge level of responsibility and liability. We have seen many instances where the person named as trustee will have limited background or experience in carrying out the legal and financial duties that come with administering a trust.
That’s okay. As long as the trustee is aware the most careful course of action is to hire an attorney to help with trust administration, then the trustee can feel comfortable knowing the trust is being administered properly, all legal requirements are being satisfied and the trustee is minimizing or eliminating any personal liability related to the role of trustee to the extent possible.
During trust administration, we will evaluate title to and beneficiary designations of all of the deceased’s assets to identify which assets fall under trust administration and which assets might need to be probated. We will also coordinate appraisals of significant assets to get a clear picture of the deceased’s net worth for estate tax purposes.
What Are The Trustee’s Responsibilities?
Trustees are typically responsible for all of the following:
Identification, collection, and determination of values of assets
Payment of all debts, expenses, and taxes from estate and trust assets, with submission of regular accountings
Advice as to disposition of jointly held assets, life insurance, and retirement benefits that pass outside a will or trust
Preparation of state and federal, gift, generation-skipping transfer, and gift tax returns
Notifying all heirs and beneficiaries of the trust or estate
Communicating with beneficiaries
What Happens When Trust Administration Is Complete?
Once the trust assets are ready for distribution, the trustee will refer to the trust terms as to how assets will be distributed to the named beneficiaries or held for the benefit of the named beneficiaries in the trust.
Sometimes the trust terms dictate that assets may be distributed outright to the named beneficiaries, and other times the trust terms dictate that the assets should be held in trust for the benefit of the named beneficiaries.
It is very common, for example, for trust assets to continue to be held in trust for named beneficiaries if the beneficiaries are minors or young adults, have special needs, or might have creditor issues that would unnecessarily expose their trust inheritance to risk.
If the trust assets are to be distributed outright to named beneficiaries, then the trustee will prepare and sign the appropriate conveyance documents to the named beneficiaries.
This part of the process admittedly can be complicated and time consuming.
Plus, the trustee will likely want some sort of assurance that upon transferring trust assets to the named beneficiaries that the trustee does not remain open to future claims of wrongdoing or omission. That is where attorney guidance comes in to help you cover gaps you may not even know exist if you are navigating trust administration on your own.
Giving The Trustee Peace Of Mind
We are here to help you in your role as trustee so that you have the peace of mind you are performing your trustee duties as law the requires and that you are not exposed to undue risk or liability.
We will help you administer the trust as quickly and smoothly as possible.
And most importantly, we will help you communicate with the trust beneficiaries in a way that makes them feel an integral part of the process, not simply a bystander or a “nuisance.”
You would be surprised at how many litigious situations we have seen arise simply from the failure to communicate with beneficiaries. That will not happen when we are guiding you in your duties as trustee.
Overview Of The Probate Process
Probate is a process through the court system to ensure the legal transfer of assets from the deceased’s name to the names of the deceased’s legal heirs or beneficiaries.
Probate is generally also necessary to prove the validity of a will, appoint someone to manage the estate, inventory and appraise estate property, pay the deceased’s debts and taxes, and distribute the estate property as directed by the will (or by state law if there is no will).
What Is So Bad About Probate, And What Should I Do Next?
You might read online that probate is ‘bad news’ and that it tends to be very expensive and time-consuming.
It depends, but one thing is for sure: The probate process is a public process that can be avoided with proper planning in advance.
But if you are now in a situation where you must go through the probate process to administer the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly and with as little expense as possible.
How Does Probate Begin?
State law designates who is entitled to begin the probate process.
The person with highest priority is the person who is named in the deceased’s last will as the “executor” or “personal representative.”
If there is no will, then the law generally establishes a hierarchy of who is eligible in what order, normally starting with a surviving spouse, then surviving adult children, and so on.
The individual who has priority would start the probate process by having an attorney prepare the legal documentation to initiate probate and by filing the original will with the probate court.
Depending on the circumstances of the estate and the family, sometimes probate can be opened without advance notice to interested parties; other times, advance notice to interested parties is required before probate is officially opened.
The best way to determine exactly what probate process applies to the estate is to meet with [Firm Name] so we can review your particular circumstances and give you the best possible guidance.
How Is The Executor Chosen?
If the deceased person left a last will that is recognized as valid by the probate court, then the person named in the will as the executor or personal representative typically will be appointed, barring extraneous issues such as that person’s illness or old age.
If the person named in the last will is unable or unwilling to serve as executor, or if there is no will at all, then the probate court may appoint an adult family member, trusted friend, or professional third party.
How Does The Executor Get Paid?
State law provides that executors may be paid reasonable compensation for the time spent in administering the estate. This said, some executors, particularly if they are the surviving spouse or family members of the deceased, decline to be paid.
Could I Be Held Personally Liable For Making A Mistake As An Executor?
Being an executor is a big responsibility.
The probate code contains pages upon pages of complex legal rules and procedures that an executor must follow during the probate process. In addition, there are certain deadlines that an executor must meet in filing papers with the court and providing notice to interested parties.
If an executor does not comply with any of these rules, he or she can be held personally liable for any losses to the estate.
My Loved One Had A Trust… Will We Need To Go Through Probate?
In most cases if your loved one left a trust as the cornerstone of their estate plan, then no you do not need to go through probate.
However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as beneficiary in order to completely avoid probate.
Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned and beneficiaries are properly designated.
Time and again we have helped family members of a recently passed loved one who found out title and beneficiary designations were not proper, and then they face the frustration, expense and delay of a probate proceeding even though the person they loved had a trust.
You may be asking: Why is that?
Oftentimes, a trust was prepared many years ago and was never updated. Assets changed, the law changed, but the trust only got more out of date. That is why it is so very important that you carefully choose your estate planning attorney who will meet with you for regular reviews of your estate plan and your assets so that the planning you do now works as planned later.
This is why we do things so much differently than most other lawyers and law firms here at [Firm Name].
What Assets Are Subject To Probate?
As a general rule, assets owned solely in the name of the deceased person are subject to probate.
By contrast, assets with title designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person.
In some situations, however, assets that would otherwise pass by title or beneficiary designation to a specified person can be subject to the probate process. Please call us if you have questions about your specific situation.
How Are Probate Assets Distributed If There Is No Will?
When there is no will or trust to dictate who receives what, then probate assets will be distributed according to state law.
In other words, the state legislature has made their best guess as to who you would want to receive your assets.
The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.
Where it gets tricky is if your surviving spouse is not the parent of your surviving children; or if you have a surviving spouse, no children, and a living parent (some states dictate that your surviving spouse split your estate with your living parent in this scenario); or even if your surviving spouse has children who are not your children (some states have complicated formulas for who gets what in this case).
You can see how things can get complicated quickly when you rely on state law alone instead of doing your own planning upfront.
How Long Does Probate Take And How Much Does It Cost?
Probate proceedings typically take around 6-12 months if there are no snags whatsoever. Some probate cases linger for two or more years if beneficiaries are disputing or if the deceased left property in multiple states.
In terms of cost, every probate proceeding is different. Probate costs include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, executor compensation, document certification fees, recording fees, and more. Some states allow fees to be determined as a percentage of the probate assets, and other states provide that fees are determined pursuant to a statutory schedule.
How To Choose The Right Attorney For Your Probate Case
The best way to ensure your probate proceeding is handled properly and quickly is to choose your attorney wisely.
Do not assume that all attorneys are the same.
Too many lawyers only “dabble” in probate or trusts. Do not choose a lawyer who does probate “on the side” – this exposes you to blunders throughout the process, causing problems for you that should have never come up and ultimately delaying the resolution of the probate proceeding.
Plus, please know you are not required to hire the attorney who drafted the will!
Just because a particular attorney drafted the will does not mean that attorney must handle the probate process, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.
Choosing your probate lawyer is one of the most important decisions you will make.
If you put in the time and effort to find the right lawyer, you will be rewarded with a compassionate advisor who will help you navigate the probate process with minimum headache and hassle.
“What Do I Do Now?”
If you are ready to get started with the probate process after the passing of a loved one, please contact us and we will help determine your next best steps.
We are here in service to making this all as easy as possible on you, and we look forward to relieving any administrative or legal burdens you may face during this time of loss.