Important Probate Rules You Should Know
When a person dies, what happens next depends on whether the deceased person had any foundational estate planning documents such as a last will and testament (otherwise known as a will) or trust, who the living relatives are, and their relationship to the person who died. If the deceased person did not have a trust or will, the state where the deceased person resided has rules for overseeing how the deceased person’s money and property are to be distributed. If the deceased person died owning accounts and property in their sole name and had a will, it will contain instructions for what is to happen to the decedent’s money and property and must be filed with the probate court. Probate is a formal legal process of proving that a will is valid (if the person had a will), appointing someone to carry out the deceased person’s wishes (known as a personal representative or executor), and supervising the distribution of the deceased person’s money and property.
While probate rules can vary by state, there are some important ones that you should be aware of should you need to wind up a loved one’s affairs.
Deadlines are important rules that must be followed during the probate process. Failing to meet these deadlines could get you in trouble with the court.
When and if to file the last will and testament. If and when a will must be filed with the probate court can vary by state, but it is important that you understand when this task needs to be completed. Some states require that your loved one’s will be filed with the probate court within a certain number of days after your loved one’s death, while others only require that a will be filed if a probate is necessary. This usually occurs when the decedent died owning accounts and property in their sole name that need to be transferred. Once the will is filed, the court will generally begin by reviewing the will to ensure that it was properly made and signed. If the court is satisfied, it will appoint the personal representative.
Collecting and securing items. The personal representative must locate and secure the deceased person’s money and property and create an inventory of all items. Deadlines for filing an inventory with the court are calculated from the date you were appointed as personal representative, and they vary greatly among states, from sixty days in Florida to six months in New York. The inventory will include a valuation of the items as of the date of death. During this period, the personal representative may also need to establish a tax identification number for the estate and open an estate checking account for depositing estate funds.
Notifying creditors. The personal representative must notify known creditors and attempt to find unknown creditors. Generally, at the direction of the probate court and with the assistance of an experienced estate administration attorney, the personal representative is required to publish notice of the deceased person’s death in appropriate newspapers to run for a specified length of time. This notice is typically published in the local newspaper where the person died. The purpose of this notice is to allow creditors, both known and unknown, time to make a claim to the estate for any debt owed. The personal representative must then determine the validity and priority of all creditor claims received and pay those claims as appropriate.
If the personal representative follows the correct steps regarding notice to creditors, any debts not brought to the personal representative’s attention during the applicable time period may be barred, and the estate may not be responsible for paying them. The creditor deadline gives creditors an opportunity to come forward with their claims, but it also provides a cutoff point for the personal representative so they can wind up the deceased’s affairs in as efficient a manner as possible.
Maintaining and providing estate accounting records. The personal representatives must maintain accounting records as proof of monies coming into and going out of the estate. Depending on the circumstances, the accounting records may need to be filed with the court, and interested parties may need to sign releases at certain intervals.
Filing and paying taxes. A personal representative must ensure that the deceased’s final tax return is filed by the personal income tax filing deadline of the year following the deceased’s death. If the estate earns income after the deceased’s death, the personal representative must file estate income tax returns (sometimes referred to as fiduciary income tax returns). Finally, a personal representative may have to file an estate tax return if required by law or for further tax planning. Each of these returns will have a specific deadline.
Who Has to Know
During the probate process, there are a lot of steps that are involved, and there may be multiple individuals who need to be kept informed about what is happening. If the deceased had a will, this would include those named in the will (beneficiaries). In some states, the deceased’s relatives and the deceased’s creditors can also be interested persons. When dealing with individuals other than those the deceased named in a will, it may be tempting to leave them in the dark, especially if there has been bad blood. However, personal conflicts do not absolve the personal representative of the duty to keep an interested person informed and to provide them with the information they are legally entitled to.
Who Can Be in Charge
Another important probate rule is who can be appointed as a personal representative. The personal representative can be almost anyone. Many states require that the personal representative be an adult or emancipated minor. However, some states may not appoint a personal representative who is a non-US resident, nonstate resident, or a felon. Most often, a personal representative is a surviving spouse, a family member, a close family friend, or an attorney. There is no requirement that the personal representative have any experience or expertise in handling estate matters nor is the person required to have any financial or legal experience or background.
We Are Here to Help
Probate is a process with many rules. We understand that this can be very overwhelming for many people. We are committed to working with named and appointed personal representatives to ensure a smooth estate administration. If you would like to learn more about the probate process and what is involved, please give us a call.
Infusing the Principles of Etiquette into Your Estate Plan
May is National Etiquette Month, and the goal is to encourage all people to act with consideration, respect, and honesty in their interactions with others and in their everyday lives.
Etiquette can also play a role in estate planning. A well-crafted estate plan ensures that your wishes are respected and that your loved ones are taken care of. Estate planning can also address what happens when you become ill and are unable to make decisions for yourself prior to death. Good manners and decorum can help minimize potential conflicts and disputes that may arise among family members during the planning process. As such, it is important to observe proper etiquette when planning and executing your estate plan to ensure a smooth and peaceful transition of your money and property to your loved ones. This involves communicating openly and honestly with family members about your plan and considering their feelings and opinions. Showing respect and sensitivity to family members can prevent future potential legal challenges that could arise from disagreements.
The following are some ways that you can bolster your estate plan by incorporating the key elements of etiquette.
Consideration. An estate plan can create a sense of stability and calm in times of loss or uncertainty. No matter what level of wealth you currently enjoy, if you do not leave detailed instructions for the type of medical care you want, you will be putting those you love most in the position of being mind readers. They will have to do their best to figure out what you would have wanted and then deal with the consequences, such as unhappy family members who disagree with them. A well-crafted estate plan shows consideration for your loved ones by preventing confusion about what to do and helping them avoid the pressure to make rushed choices.
Additionally, a carefully prepared estate plan can allow you to customize a plan that provides for your loved ones in a unique way that takes into consideration your loved one’s personal circumstances. They can find solace in the love and consideration you showed them by ensuring that your estate plan was not just a one-size-fits-all document.
Another way you can demonstrate consideration in an estate plan is by carefully considering who you are choosing as your trusted decision makers. Each role in an estate plan is important and is best handled by individuals with the right skills. When you are choosing a decision maker, it is important that you pick the right person for the job and that the person you are choosing can handle the responsibilities. In some instances, the person may not be able—not for a lack of skill, but because their plate is already full. Choosing an already overcommitted loved one could leave them feeling burdened and resentful during a time when they need to be grieving.
Respect. Estate planning makes it easier for your loved ones to respect your wishes because they know exactly what you want. Trust-based estate plans can respect your and your loved ones’ right to privacy by keeping private matters out of the public eye. Without a comprehensive trust-based estate plan, your estate may need to go through court in a proceeding called probate. This means that your choices become visible to the public, as does any information that needs to be filed with the court (like a list of everything you owned).
Honesty. An estate plan can bring a family together. News stories are rife with examples of beneficiaries arguing over a deceased loved one’s money and property or instances of a person’s care and end-of-life wishes being ignored. But an estate plan can avoid those types of emotionally draining situations. You should communicate your wishes for end-of-life care to your loved ones. While creating an advance directive document like a healthcare power of attorney is important, it is equally essential to have open and honest conversations with your loved ones about your wishes. These conversations can be difficult, but they can provide clarity and peace of mind for everyone involved. And these discussions can provide a wonderful opportunity for you to show those same people how much you care for them and appreciate them while strengthening the bonds of family love. Many people also take the opportunity to write something personal to their family members – passing along hopes, dreams, stories, and wisdom.
By crafting an estate plan that is considerate of one’s loved ones, respectful of privacy, and honest about wishes for care and end-of-life decisions, you can ensure that your wishes are carried out in the most respectful and dignified manner possible. If you are interested in learning more about our estate planning process, or to update your existing plan, please schedule a meeting with us.
Have You Outgrown Your Estate Plan?
As estate planning attorneys, we work hard to set up estate plans that fit a client’s needs and ensure that everything works together for the client and their loved ones. Estate plans remain effective as long as they accurately reflect a client’s circumstances and current state and federal tax law. However, circumstances often change. So, too, should your estate plan.
Outdated plans not only jeopardize your wishes and legacy vision but may also negatively impact your loved ones and yourself. An outdated estate plan can result in many issues such as unintended income or estate tax consequences, the disqualification of a special needs beneficiary from benefits, potentially greater fees and costs associated with settling an estate, forcing loved ones to resort to court intervention, and disinheriting desired beneficiaries or benefitting unintended beneficiaries.
Changes in the Law
Trust and estate laws are constantly evolving, and new legislation could impact your estate plan. One example is the Setting Every Community Up for Retirement Enhancement (SECURE) Act, which changed how beneficiaries could inherit retirement accounts. Another example is the federal estate tax exemption, which is scheduled to continue increasing until the end of 2025, when it will sunset and revert to a much smaller exemption level.
Changes in Your Wealth
Depending on when you originally created your estate plan, you may have chosen to create a last will and testament (otherwise known as a will) because you were young, single, and did not have much money and property. You understand the importance of having your wishes set out in a legally enforceable way, but you did not need any extensive planning at that time. Fast forward ten or more years, and your life may be vastly different. If you have accumulated more money and property, had children, or have gotten married or divorced, you may now need to consider some additional planning to ensure that your loved ones are protected. This may mean you are ready to have a revocable living trust as your foundational estate planning document instead of a will. With more money or minor children to protect, a trust will allow for more privacy and efficiency in handling your affairs during your life and at death.
Your net worth may increase to a point where it warrants tax planning that was not necessary originally. If you have a life insurance policy and other accounts and property that have gone up in value, a tool such as an irrevocable life insurance trust may be beneficial now to remove the value of the life insurance policy from your overall net worth to save on potential estate tax liability at your death. It is important to remember that in order for this strategy to work, it is prudent to work with an experienced estate planning attorney to ensure that the trust and transfer are executed properly and adhere to applicable laws. Additionally, if your retirement account has grown significantly over the years, it may be time to create a standalone retirement trust to be the beneficiary or backup beneficiary of the account. This could make management of the retirement account easier at your death since it will be the only account that the trustee of that trust will have to manage.
You may also have acquired new assets—particularly digital assets. As of 2022, 16 percent of Americans have purchased digital assets. Digital assets may take many forms, such as music, photographs, documents, or contact information kept in cloud storage; log-ins to social media platforms; cryptocurrencies; and credit card or airline reward points, to name a few. Digital assets are typically more vulnerable to identity theft and hacking once their original owner has passed away.
Changes in Your Relationships
A specific portion of your estate plan that needs to be reviewed periodically is your choice of trusted decision makers to act on your behalf. These trusted decision makers are legally bound to act in your best interests. Sometimes, those whom you originally chose may no longer be appropriate for the role. Maybe there was a falling out, or your chosen decision maker may have moved away or had other personal changes that make it difficult or impossible for them to fill the role now. Even a corporate fiduciary may decline to act if it requires that a minimum value of accounts and property be under their management before it will accept an appointment. Especially if you are retired, you may not have as much money and property as you did when you first created your estate plan.
Changes in Beneficiary’s Needs
Lastly, how you have chosen to leave money and property to your loved ones may need to be updated. If you created or updated your estate plan shortly after the birth of your first child, you may have included general instructions on how the money and property should be used for your child’s benefit. However, now that your child is older, you may want to revisit these sections to customize how and when your child receives money and property. Depending on their age, you will likely have a better idea as to your child’s unique personality, interests, struggles, and needs. Updating this section of your estate plan can help ensure that you are creating a plan for your child’s inheritance that will truly meet their needs.
Let Us Help You Make the Necessary Changes
To protect yourself from these possible scenarios, it is incumbent upon you to periodically review and, if necessary, update your estate plan. If there have been any personal changes that necessitate a change to your plan, no matter how big or small, please schedule an appointment so we can ensure that your plan meets your specific needs.
 White House, Fact Sheet: White House Releases First-Ever Comprehensive Framework for Responsible Development of Digital Assets (Sep. 16, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/09/16/fact-sheet-white-house-releases-first-ever-comprehensive-framework-for-responsible-development-of-digital-assets/.