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Probate Guide for Survivors

Posted by attorney Russell Winer

Probate laws are state specific, accordingly, the following is a general guide and will not be applicable in every jurisdiction. Legal counsel should be promptly obtained whenever there is a death of a loved one. Locate the Will and give it to the attorney so that it can be deposited with the Clerk of Circuit Court, Probate Division (sometimes called Surrogate’s Court or Widow’s and Orphan’s Court). Obtain ten certified copies of the death certificate. Cancel the Decedent’s health insurance. The Estate may be entitled to a refund of the unearned insurance premium. Locate any life insurance policies. Contact the Decedent’s employer for group life insurance or other benefits. Gather recent bank records, and records of real estate owned. Bring the papers and records of the decedent to the law office to determine the extent of the estate. Prepare a list of the names and addresses of the beneficiaries of the estate. Do not pay bills or agree to pay bills until consulting with the attorney. If the Will contains a proper affidavit of the testator and witness executed in the presence of a notary public, it may be "self proved" and no additional proof is needed. If the Will is not self-proving, the Will may be proved by the oath of one of the witnesses. The witness may appear before a probate clerk and sign an oath regarding the execution of the Will. ADMINISTRATION In the administration of an estate, the personal representative (often called Executor or Administrator) must promptly marshall the assets of the estate, that is, he or she must locate and inventory all of the decedent's assets. An inventory is normally required to be filed within a short time after issuance of the Letters of Administration (often called Letters Testamentary). If decedent had a safe deposit box, it would be necessary to view the contents. The personal representative may also need to file claims for life insurance benefits, social security, V.A., or Medicare benefits. The personal representative must respect his or her fiduciary duties, such as a duty to keep estate money separate from personal funds and be honest and exert one’s best efforts. Not complying with the fiduciary duties may allow a beneficiary or creditor to petition for the removal of the personal representative and to hold the personal representative liable for damages and legal fees incurred by the estate. CLAIMS All known or ascertainable creditors have the right to be informed of the pending probate proceeding. Those who fail to file a timely claim will have that claim barred, except perhaps claims based on federal law. Review with your attorney all claims that have been filed and determine those to which objections should be filed. Generally, creditors are paid before heirs inherit their money, but there are exceptions. When there isn't enough money to pay all the creditors, most legislatures have set an order in which claims are paid: (a) Costs, expenses of administration, and compensation of personal representatives and their attorneys' fees. (b) Reasonable funeral, interment, and grave-marker expenses. (c) Debts and taxes with preference under federal law. (d) Recent medical and hospital expenses. (e) Family allowance. (f) Arrearage from court-ordered child support. (g) All other claims... TAX RESPONSIBILITIES The personal representative is responsible for filing the decedent's final income tax return. The personal representative is also responsible for filing an income tax return for the estate in any year that the estate has at least $600 of income. Your lawyer will discuss with you whether a federal estate tax return and a State return is due. SMALL ESTATES SUMMARY ADMINISTRATION If the assets of the decedent’s estate are modest, then a formal probate is usually not necessary. If the Petition is signed by all interested parties, the proceeding can be finalized and an Order of Summary Administration entered in a relatively short period of time. This may be an efficient way to transfer the ownership of a brokerage or bank account. Joint accounts & transfer on death accounts In most situations, an account that is joint will simply be paid over to the survivor. Many people have accounts with beneficiaries already designated. These may be referred to as “transfer on death", “pay on death" or “in trust for." Almost all IRA’s and 401(k) plans will have the ability to name a beneficiary, although if the Decedent is married, in most cases the spouse is the beneficiary unless a proper declination is on file. In these situations, normally no Probate activity is required. Likewise, many states have simplified procedures to transfer the title to a motor vehicle, without the need for Probate. Similarly, insurance policies insuring the decedent are normally paid without regard to and without requiring any Estate activity. CLOSING After the personal representative has completed his or her duties, except for distribution of the assets, the personal representative will normally file with the Court a Final Accounting and a Petition for Discharge or waivers from all the heirs. Provided all creditor claims are disposed of, and other requirements met, the Judge will enter an Order of Discharge. The Order of Discharge officially closes the estate, and relieves the personal representative of further responsibility.

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