Probate & Estate Administration

will-and-probateProbate is typically a requirement of all states after someone passes away in order to get access to money or assets that are left behind. Probate is the process through which courts manage estates and ensure fair distribution of assets among beneficiaries.

Executors are appointed to manage this distribution, but many have no idea what they’re doing.

Working with a probate lawyer can help minimize fees, streamline the process, and save you time. Probate lawyers will separate fact from fiction in estate administration, which is a complicated web of rules that vary depending on state law. Probate lawyers can also protect your assets against creditors and predators.

When you are mourning the loss of a loved one, you don’t need the complicated task of unwinding their estate. Leave that to a probate lawyer who can ensure it’s done properly.

Contact Bridges & Farmer to speak with an esteemed Georgia probate lawyer today.

What is probate and estate administration?

An estate refers to everything someone owns, including property (real estate), securities (stocks and bonds), personal effects (cars, boats, jewelry), and cash.

Probate is a legal way to transfer the estate from a deceased person to their beneficiaries. Probate requires the executor or executors named in the will to take over responsibility for that property and administer it according to the terms of the will.

Probate also settles the claims of creditors, pays any taxes that are due on behalf of the deceased person, and distributes remaining assets to beneficiaries. Probate can be voluntary or involuntary.

Involuntary probate occurs when someone dies without a will (intestate). Voluntary probate happens when an individual has provided for their own estate settlement with a will.

Estate administration refers to the process by which an estate is settled after probate. This is the process of closing an estate, which includes duties such as inventorying property, paying debts, and distributing property to heirs by probate or intestacy law.

What is the difference between probate and estate administration?

Probate is just one part of the wider estate administration process.

The procedure of ensuring that an estate is properly settled and that all assets are allocated to the beneficiaries is known as probate. Probate is the process through which you get legal permission to handle the estate, including dealing with assets, money, and personal belongings.

Estate administration is the process by which a named individual, an executor, handles all of the details of the estate. This is where an executor must follow the guidelines of a deceased person’s will or the legal rulings following a person dying without a will. They have to ensure the accounting is in order, pay all creditors and taxes, and distribute gifts accordingly.

What are the steps for probating a will?

The exact process for probating a will varies depending on the estate. However, most estates follow the same general structure:

 

  1. Inventory the deceased’s assets and debts
  2. Apply for probate with the courts
  3. Complete the deceased’s final tax return and pay any taxes that they owe
  4. Receive probate approval from the courts
  5. Repay any outstanding debts for the deceased
  6. Distribute the remaining estate to beneficiaries according to the terms of the will

What is an executor?

An executor named in a will is usually an individual but can be a trust company. They are responsible for collecting and overseeing estate assets, paying the deceased’s debts, and dividing what remains of the estate among beneficiaries.

The Probate Court gives authority to an executor who follows state law.

There can be more than one executor. In fact, most individuals name alternate executors in the case of death or inability to act on the part of one of the named executors. There can also be co-executors. Co-executors must share the responsibilities of being an executor.

Duties of an Executor

The duties of an executor can be broken down into four major categories: Probating the will, paying debts and claims, including taxes, distributing assets to inheritors or beneficiaries, and filing an inventory with the courts.

Probating a will means obtaining permission from the Probate Court to handle an estate. After probate has been granted, the executor obtains legal authority to distribute assets of the estate and take care of other matters related to probate and estate administration.

These include the following:

  • The executor is responsible for obtaining probate or Letters Testamentary from the Probate Court. Probate establishes the executor as having the legal right to act on behalf of the deceased person’s estate.
  • The executor is responsible for collecting the deceased’s tax returns and accounting for the deceased’s assets – whether they are physical or financial.
  • The executor is responsible for contacting third parties to ensure bills are paid and insurance claims made, in order to protect the estate.
  • The executor is responsible for filing an inventory of property with Probate Court, which typically occurs once probate has been granted.
  • The executor is responsible for making sure that all debts and taxes are settled according to probate laws.  If the executor does not do this properly, they can be personally liable for any debts of the deceased.
  • The executor is responsible for notifying heirs, beneficiaries, and creditors of probate.
  • The executor is responsible for distributing assets to inheritors or beneficiaries according to probate law.
  • The executor may acquire professional help when needed, such as from an accountant or lawyer. These expenses are funded by the estate.

How does an executor get paid?

Executors get paid for their work in probate. Like anyone else receiving a paycheck from an employer, the executor must complete hours of work fulfilling probate duties and is compensated for that time. The payment for being an executor is taxed as a form of income.

The probate code allows for this compensation to be a percentage of the estate’s assets ranging from one to five percent.

The probate judge, as well as the executor and the probate clerk (if separate from Probate Court), must approve all fee schedules.

The percentage is applied to the net value of the estate after payment of probate costs such as court filing fees, bond premiums, and appraisal charges. The total cost to administer an estate can vary depending on the determination of fair compensation. This is impacted by the type of Probate Court proceedings, the complexity of asset management, any unusual conditions surrounding the probate matter, and any special skill or time required.

To save time on arguments over the compensation for executors, many wills include a clause that clarifies the amount they are to be paid. This may help executors in the future for tax purposes.

What is a breach of fiduciary duty?

A breach of fiduciary duty occurs when a principal fails to act responsibly in the best interests of a client. More specifically, probate code section 138(a) states that an executor shall make a reasonable effort to ascertain the location and value of the assets belonging to the estate.

A breach can be claimed by any beneficiary or heir of an estate when it is clear that the executor has fallen short of this obligation. The probate code allows for the recovery of damages against an executor who fails to fulfill their fiduciary duty to their clients.

The majority of probate code section 138(a) occurrences are reported when a binding fiduciary relationship exists and activities are taken that go against or work against the interests of a single client. These activities are generally alleged to have benefited the executor or another party rather than the probate client.

If a breach of fiduciary duty has occurred, a plaintiff will need to argue four essential elements to file a legal claim against the negligent party.

The defendant must be shown to have a duty to the plaintiff. In this case, a fiduciary duty must have existed between the plaintiff and the defendant. It is typically presented in writing in the form of a binding contract.

The plaintiff must then show that a breach of this duty occurred. This can include an accountant misfiling paperwork that led to the plaintiff being fined by the IRS, an executor not paying off liabilities before distributing the estate to the heirs, or a lawyer who does not complete the fiduciary accounting they agreed to do.

The plaintiff must prove that the defendant caused damages from their breach. If there is no damage, then there is no reason for a fiduciary duty case. Beneficiaries can show that executors lost money from the estate or that they had a conflict of interest to prove damages.

These damages must have been directly caused by the breach to be a valid point of concern.

If you are concerned that a breach of fiduciary duty has occurred in your loved one’s estate, contact Bridges & Farmer today to discuss your options. We will help you determine the best steps to take to protect the estate and ensure your rights are protected.

What happens if someone objects to a will?

When a petition for probate is filed, there is an option for someone to object to the will. This allows individuals who believe that a will was filed improperly to petition the court for a correction to be made.

Often, objections are not made due to actual issues with the will but are the result of personal issues with the amount of an inheritance awarded.

Wills can be objected to if it is thought to be invalid, which could include a conflict because a beneficiary was underage when the will was filed.

It can also be objected to because of mental incapacity if it is believed that an individual did not have the mental capacity to write a valid will or did not understand what they were doing when they signed their name on the will.

If the deceased was manipulated into changing their will by an individual, then the will may also be considered invalid. If a will is forged or an original will cannot be found, then the will may be objected to and considered invalid.

A will can also be objected to if a financial dependent of the deceased is not named in the will. This can include a spouse, child, adult child, or other financial dependant defined by the Inheritance Act.

Authenticating a Will

To begin the probate process, the deceased’s last will must be filed with the court. It may also need to be filed alongside a death certificate, depending on the state. Most states require that the will be filed as soon as possible to begin the estate administration process.

The court must then determine if the will is authentic. A probate lawyer must verify that the signatures on the document match, and if it was executed properly. When a will is signed in front of witnesses, it may include a self-proving affidavit. This means that the witnesses have already signed an affidavit assuring the court that the will is authentic.

If this is not done, then witnesses may be brought before the court to attest to the fact that they saw the deceased signing the will. They will need to testify to the mental capacity of the individual to ensure that they were of sound mind and were not being coerced.

How does probate administer all of the deceased’s property?

Probate records, including wills and estate inventories, provide insight into personal assets and debts which makes it easier to identify all property that should be inherited.

Before a will can be read in court, it must pass through probate proceedings where a judge determines whether or not there are any issues with the legality of the will.

During the probate process, the court gains access to the deceased’s financial records, including bank statements and tax filings. Probate administrators are responsible for locating assets, paying debts and taxes, and distributing any remaining assets to their heirs. Property, including financial assets, should not be given to beneficiaries until it has first been used to pay off any taxes, debts, and creditors that are outstanding. However, an executor may decide to give out portions of the estate while holding back enough money to ensure that they can pay off debts. This can be done to ensure that assets do not depreciate in value, such as a car that would lose worth if the executor waits a year to sell it.

Once all property is distributed according to the instructions of the deceased in their will, then the executor can close the estate with the courts. This releases them from their duties officially.

How long does estate administration take?

If there are no problems and all property is easily located and identified, the probate process can take about six months. Probate can last up to two years, however, if the estate needs judicial appraisal or there is a petition for letters of administration by interested parties (for instance, creditors who claim outstanding debts).

Every case is different. In estate administration situations, there can be unforeseen complications that lengthen the process of doling out the estate. For example, there can be issues with tax returns from before the deceased passed, issues with in-fighting among heirs, and beneficiaries who fail to sign off on the estate accounting.

Estate administration runs much more smoothly when a probate lawyer is involved. A probate attorney can assist you in the process of probate, help you avoid problems with creditors or heirs, and ensure that your loved one’s wishes are respected.

As a third party who does not benefit from the will, a probate lawyer can act as a mediator between fighting family members.

Contact Bridges & Farmer today to speak with a probate attorney about your estate administration needs.

How much does probate cost?

Probate fees and estate administration costs vary from state to state, as well as from case to case. Probate fees can be expensive, ranging from a few dollars up to several thousand dollars.

Court costs often come out of the estate itself, which reduces the portion heirs get. Drawing out procedures due to in-fighting can increase the costs dramatically, especially if the executor has acquired professionals like accountants to assist with the estate administration.

The process can be streamlined with the assistance of a probate lawyer. Probate lawyers can help you draft a will with minimal probate costs before your death. They can also assist executors with minimizing costs as they go through the estate administration process.

Call today to speak to a Georgia probate lawyer at Bridges & Farmer.

Probate Terms to Know

  • Estate Taxes: When a person dies, the government collects various taxes for his or her property that are known as “estate taxes”.
  • Executor: An executor is the individual or individuals who ensure that an estate is doled out according to the directions of the deceased’s will.
  • Administrator: An administrator operates as an executor for a person who died intestate.
  • Testator: The testator is the individual who wrote the will, in legal terms.
  • Intestate: You can die intestate if you have not written a will.

Contact Your Duluth Probate and Estate Administrator Lawyer Today

Whether you are dealing with an estate administration or probate issue, are concerned about fiduciary breaches, or believe that a will has been misinterpreted, you need to speak to an experienced probate attorney.

Our attorneys have more than a half-century of combined probate and estate administration experience. We have handled complex cases involving wills, trusts, taxes, and marital disputes that relate to an estate.

We will provide you with a free consultation regarding your probate or estate administration issue. We know that these matters can be emotionally difficult as well as time-consuming. Make the process easier on yourself and your family by hiring a third party who specializes in probate and estate administration.

Call Bridges & Farmer today to speak with a Duluth Probate and Estate Administrator lawyer about your legal issue. You can reach us at (678) 395-7506.

Our probate lawyers will guide you through the probate process from start to finish, keeping you informed along the way.