Probate Administration

If you recently lost a family member or close loved one you are undoubtedly grieving that loss. The legal aspect of your loved one’s death may not be at the forefront of your thoughts right now; however, if you are the individual who will be administering the estate during the probate process you will need to focus on the legal ramifications of your loved one’s death. Jeffrey Field is an experienced probate attorney at Field Law Firm that can help you avoid making a costly mistake during probate administration.

What Is Probate Administration?

Probate administration refers to the process of identifying, valuing and eventually distributing the estate of a decedent. Probate administration is carried out by the individual named as Executor if the decedent left behind a Last Will and Testament or by a volunteer Administrator if the decedent died intestate (without a Will).

How Do I Know If Probate Is Required?

Most state offers an alternative to formal probate for small estates. The general rule is that if you have the legal right to inherit the property, and the estate is valued at less than $165,250, you may be entitled to use an affidavit to transfer property instead of going through the formal probate process. Given the complex rules that apply to probate administration, however, it is always best to consult with an experienced probate attorney to determine if you are eligible to use a small estate administration in lieu of formal probate administration.

Is the Probate Administration Process Different for an Intestate Estate?

If the decedent left behind a valid Will, the provisions in the Will dictate how the estate assets are to be distributed. If the decedent died intestate, the intestate succession laws in Utah and California determine what happens to the estate assets. In that case, the legal heirs of the estate must first be identified and located as part of the probate administration process.

What Happens during the Probate Administration Process?

Every estate is as unique as the owner of that estate. Consequently, no two probate administrations are exactly the same. There are, however, some common duties and responsibilities of an Executor or Administrator during the probate administration process, including:

  • Estate assets — identifying, locating, securing, and valuing estate assets should begin as soon after the death of the decedent as possible. At the end of the administration you will need to take the proper steps to effectuate the legal transfer of the remaining assets to the named beneficiaries and/or legal heirs of the estate.
  • Creditors – you must notify all creditors that probate is underway as well as review all claims submitted by those creditors. Approved claims are paid out of estate assets.
  • Litigation – if someone challenges the validity of the Will submitted for probate, you must defend that Will throughout the ensuing litigation.
  • Taxes – federal gift and estate taxes must be calculated and an estate tax return completed and filed. Any taxes owed must be paid first out of estate assets.

What Are The Costs For Probate?

  • The probate process is not free, and the costs vary. The costs are set according to law and generally five percent of the gross value of the estate is paid to the executor and five percent to the probate attorney. The court determines this based on the value of the estate, or the assets involved.

Do I Need to Hire a Lawyer?

Ultimately, the decision to retain the services of a probate attorney or not rests with you; however, the complexity of probate administration and the risk of making a costly mistake prompt most Executors/Administrators to make the decision to work with an attorney throughout the process. If you are a beneficiary and you wish to challenge the Will submitted for probate, you will likely need an experienced attorney on your wide to navigate the litigation.

Probate FAQs

Probate is designed to create a “final accounting” upon death. It is the legal process of “proving up” a Will, or verifying that a Will is valid, and takes place in one of two instances. First, if a person dies leaving behind a Will, or second, if the deceased has died intestate, that is, has not left behind a Will or estate plan of any type or the Will cannot be found.
Probate begins and ends with the special Probate Court set up in each state to handle estate issues. (Sometimes known as the Surrogate, Orphans’ or Chancery Court in certain states.) All actions taken regarding the estate are accountable to this court, and must be noted and reported regularly. This court is staffed by judges qualified to oversee estate resolution issues.
Depending on the complexity of the estate and the thoroughness with which accounting has been carried out before death, probate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, probate may be a lengthy process often taking months or possibly years to play out, and one which may take a considerable amount of time. To summarize the process, probate can be broken into six basic steps: * Validation of the Will * Appointment of personal representative (executor) * Inventory of the estate * Payment of estate taxes * Payment of claims against the estate * Distribution of remaining assets Each of these steps involve legal documentation and validation, and more importantly, proper accounting each step of the way.
No, if you have a fully funded Revocable Living Trust going to the Probate Court can be avoided.