The administration of an estate involves the following steps
o Determine and pay debts and expenses of the decedent/estate
o File final income tax returns
o File estate tax return, if necessary
o File gift tax returns, if necessary
o Collect all assets of estate
o Prepare inventory of estate assets
o Prepare accounting of estate
o Create and fund testamentary trusts or distribute assets to beneficiaries
o Have guardian of children appointed if necessary
o Obtain receipts and releases from beneficiaries
The most common form of administration is an independent administration. An independent administration may be had in the following circumstances:
o Decedent provided for independent administration in his Will;
o All distributees under Will agree to have independent administration even if not provided for under Will; or
o All heirs of a decedent who died intestate agree to nominate an independent administrator.
In an independent administration, an executor is allowed to administer the decedent's estate without court supervision. All an executor is required to do with the court is file an application to probate, have a hearing in front of the judge, receive letters testamentary, file a notice to creditors, and file an inventory within ninety days of being appointed by the court as independent executor. Generally, the executor does not need to ask the court for permission to sell or distribute any assets.
Below is a time line for a simple, uncontested, non-taxable probate. The time line illustrates best case scenario and delays may result if the decedent died intestate, the beneficiaries are not supportive of the administration, witnesses are needed to prove up a Will (in the case of a Will that is not self proved), the estate is taxable, or the probate is contested.
Best Case Scenario Time Line for Independent Administration
Day 1: Meet with attorney to deliver will, discuss fees, review duties of client, and clarify scope of attorney's employment.
Day 7: Attorney sends client a fee agreement
Day 7: Attorney files with the local county or probate court an Application to Probate Will and for Issuance of Letters Testamentary along with the Last Will and Testament of the Decedent.
Day 21: Attorney accompanies client to hearing. Attorney asks client to sign Form SS-4 Application for Employer Identification Number for the estate, if necessary.
Day 28: Attorney sends client a letter enclosing Letters Testamentary and Employer Identification Number for the estate, enabling the client to open a bank account and begin collecting assets.
Day 51: Attorney must have published and filed notice to creditors.
Day 111: Attorney must have filed with the court an Inventory within ninety days of the hearing date.
In a dependent administration, the executor must do all of the tasks required of an independent executor. In addition, in a dependent administration, the executor or adminstrator is closely supervised by the court in regards to the sale or distribution of property. The executor or administrator is also required to complete and file with the court detailed accounting records on every transaction. In a dependent administration, the executor must petition the court for permission to do everything. The executor cannot pay any debts in the estate, nor can the executor sell or distribute any assets without first obtaining permission from the court to take the requested action. The court then enters an order authorizing the action. A dependent administration means more attorney fees, increased expenses in filing fees and bond premiums, and a more lengthy process in completing the estate. A Dependent administrations take longer and cost much more than an independent administration.
Muniment of Title
A muniment of title is a simple form of probate. It is often used when the only asset requiring probate is real property. It is unavailable if the estate contains cash or securities, as banks and other institutions usually require letters testamentary to transfer title to such assets. Letters testamentary can only be issued in independent or dependent administrations. Muniments of title are commonly used when a Will is being probated after four years have expired since the decedent's death.
When a person dies intestate, it is often necessary to seek a judgment declaring heirship. If the estate requires administration, the heirship may be accompanied by either an independent or dependent administration. The court appoints an attorney to investigate the family history of the decedent. The judgment declaring heirship sets out the heirs and their interest in the estate.
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