Probate can be a challenging process after a loved one passes and getting through the grief is hard enough. Handling paperwork, assets, and property can bring some closure, but takes a great deal of organization.
What is Probate?
Probate is the court process of winding up the estate of an individual after death. A few Important terms to remember:
- Decedent (the person who has passed away)
- Executor/Executrix/Personal Representative/Administrator (the person named in a will or appointed by a court to manage the estate)
- Heirs/Beneficiaries/Devisees (the person, group, or entity entitled to receive assets after someone’s death)
- Testate (a person died WITH a will)
- Intestate (a person died WITHOUT a will)
Where to Start
After a loved one dies, there are some immediate steps to take. Ensure family members are notified and funeral arrangements are discussed. It generally does not take much time to obtain a death certificate and ensure a loved one is respectfully laid to rest. It is here that a will or other instruction is helpful to determine whether burial or cremation is appropriate. There may also be military honors to bestow. Some families prefer to have a wake, funeral, memorial, or all of the above. This time of grief is important and will most likely come with unexpected costs, emotions, and tasks. Before jumping into probate or estate administration, it is usually in the best interests for families to band together and tackle these hurdles in a united fashion. Unfortunately, that may not always be possible.
Determine Whether a Will Exists
In the early days, there is no more difficult task than determining the existence or nonexistence of a will. A will is an expression of testamentary intent in which one provides instructions on how to distribute an estate upon death. As mentioned above, if there is a validly executed will, then a person is said to have died testate.
The person making the will, the Testator or Testatrix, must have followed the formalities of will-making. In most states, this means that a document contained sufficient language to express the individual’s desire to make a will, signed by two witnesses, and/or acknowledged in front of a Notary Public. The process of validating a will reduces the likelihood of fraud, theft, or improper distributions.
If no valid will is found, then an individual is said to have died Intestate or without a will. Dying without a will triggers a chain reaction of events and state laws that involve Intestate Succession (the assets or property an individual leaves behind will be distributed in accordance with state law). Family or close friends must act timely to care for minor children, secure important papers, prevent property damage, or even take care of pets.
Getting Through Court
The probate process can be arduous and the best way to navigate the legal requirements is to go step-by-step.
- Letters: If a personal representative (PR) is named in a valid will, or an administrator steps forward in a case without a will, that person will need to petition the court for appointment and request Letters Testamentary or Letters of Administration. The granting of these Letters will ensure that an individual has legal authority to identify assets, pay debts, and eventually make distributions. PRs or Administrators may also be required to post a bond or can request the court waive it.
- Nonintervention Powers: The Petitioner will most likely request nonintervention powers and ask the court to allow the PR or Administrator to manage the estate without intervention from the court.
- Asset Inventory: Before, during, and after appointment, a PR or Administrator must make (and update) a detailed inventory of the assets, property, debts, and other information relating to anything owned by the Decedent or that the Decedent was entitled to. THINK: WHAT IS IT? and WHERE IS IT?
- Appraisement: Once assets are determined, the PR or Administrator will consult with professionals, property records, or other entities to determine the valuation of assets. This process will help determine whether an estate is solvent or insolvent (is there more money OWED than the estate has?).
- Notice to Creditors: The PR or Administrator will also be responsible for notifying creditors to ensure outstanding debts are taken care of. This notice can either be given directly or published in a legal newspaper. Following this process will also ensure that creditors’ claims are brought timely. There are also some state agencies to notify, so keep records.
- Taxes: Depending on the nature of assets, there may be tax liabilities for PRs or Administrators to determine, including personal and estate taxes. More likely than not a CPA or accounting firm will be the best professional service to consult. The state of Washington estate tax exemption is currently $2.193 million per taxpayer and the federal estate tax exemption increased to $12.92 million per taxpayer for 2023.
- Accounting: Regardless of whether nonintervention powers are granted, PRs and Administrators should be prepared to provide an accounting and inventory to beneficiaries or other legitimate parties that request it.
- Distribution: After taxes are determined, debts are paid, and a final inventory is prepared, the PR or Administrator should arrange for final distribution to the appropriate heirs or beneficiaries.
- Completion: Upon completion, the PR or Administrator can file a Declaration of Completion and request a discharge of duties under the estate.
TEDRA
When there are complex decisions to make or assets to distributed, a growing trend is to ensure ALL beneficiaries are treated fairly and have an opportunity to fully understand the actions of the PR or Administrator. One process in which this is accomplished is an agreement under the Trust and Estate Dispute Resolution Act (TEDRA), sometimes called a Non-Judicial Binding Agreement (NJBA). It is a legally-binding agreement in which parties agree to the actions a PR or Administrator will take in liquidating, distributing, or managing estate assets. The main misnomer is the word “Dispute” because there may not be a dispute at all; rather, the goal is preventing any future dispute by getting all parties to consent under the same terms.
Partnering with an Attorney
Not all estates are filled with drama and fighting family members (it’s never great when Hollywood becomes the reality!). Some will provisions even include language that the Testator does not want disputes among heirs and beneficiaries. Engaging in a challenge of a will, may jeopardize the challenger’s share. Work with an experienced probate lawyer to ensure there won’t be delays, disputes, or difficulty in wrapping up a loved one’s estate.
Start with a checklist and follow it step-by-step. Regardless of the complexity, there are solutions to be pursued and an end in sight. The constant question of “When is it over?” will come up often. By being prepared, taking a deep breath, and being ready for the hurdles, the probate process is navigable. Probate attorneys know that the best way ahead is to have all of the facts and try to construct a full picture of the estate. When the time comes to close out the case, staying focused and organized will help to close out the life and legacy of your loved one.
