Trust Administration / Probate
Incapacity
When a loved one becomes incapacitated and no planning has been completed, a guardianship may need to be created in the probate courts. This process can be costly, which can be avoided with proper planning. It can also result in the wrong person acting as the guardian for the individual. Improper planning results in the following:
Costs incurred in a guardianship
Costs to you if the wrong medical decisions are made
Costs to you of improper financial management if the wrong person is managing your finances
Costs of family disharmony
With proper planning, you decide on the definition of when you are disabled and who will be managing these decisions.
Our team begins the preparation of administration of a trust before the disability occurs. Our process provides the tools to assist our clients while they have capacity and in case of their incapacity. Our team will assist the individuals whom you have chosen to administer your health care decisions and we will assist those whom you have chosen to administer your finances if you are disabled.
Upon Death with a Funded Living Trust
When a loved one passes away, if they have properly funded the Living Trust, no court action thru probate is necessary. However, administration is necessary. Our team provides guidance to your trustee to assist them through the administration of the terms of the trust. Our planning for you will provide the tools necessary during your lifetime which will allow for a smooth transition for your successor trustee. Our team guides the process for your trustee.
Upon Death with Assets in Your Sole Name
When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary. Instead, the successor trustee administers the distribution of the deceased's assets.
The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
Every probate estate is unique, but most involve the following steps:
Filing of a petition with the proper probate court
Notice to heirs under the Will or to statutory heirs (if no Will exists)
Petition to appoint Executor (in the case of a Will) or Administrator for the estate
Inventory and appraisal of estate assets by Executor/Administrator
Payment of estate debt to rightful creditors
Sale of estate assets.
Payment of estate taxes, if applicable
Final distribution of assets to heirs
Frequently Asked Questions
What happens if someone objects to the Will?
An objection to a Will, also known as a “Will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.
In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example, children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.
Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are called “non-probate assets” and do not go through probate. These include:
Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
Life insurance policies.
Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.
Do I get paid for serving as an Executor?
Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased's estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.
How much does probate cost? How long does it take?
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will, and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.
Contact us to start your trust planning process in order to avoid these unnecessary probate costs. If you have been named as an executor, trustee, or agent under power of attorney, we can guide you regarding your duties.