“Death is emotionally hard. Planning for a smooth probate process can help your loved ones as they grieve and heal.”
Probate seems daunting. The emotions, family dynamics and financial issues surrounding a death are hard enough to handle without the added complexity of administering the estate.
“Death is hard enough, make it easier on those who you leave behind.” – Stephen Lehnardt
”Probate” refers to the formal legal process of collecting a deceased person’s assets, paying their final expenses and creditors, and then distributing their remaining assets either according to a will or the probate code if there is no will. The process varies by state but usually includes the following basic steps:
- The executor or personal representative named in the will files the will and petitions the probate court to open a testamentary administration. If no will exists then an interested person files a petition for intestate administration.
- The court opens the administration by ordering the appointment of the executor and granting them authority to administer the estate.
- The executor gathers the deceased person’s assets, notifies creditors and pays debts and claims.
- The executor then distributes remaining assets to the beneficiaries.
Under the applicable probate code, probate administration generally takes eight months to one year or more to complete. If the estate assets are complex, or if conflict arises, the process can take even longer.
If you want probate to be as smooth and simple as possible for your heirs, here are a few tips:
For Your Executor:
Your executor has a fiduciary duty to manage and distribute estate assets according to the instructions of your will and probate law. The executor:
- Locates the original will, gathers documents and files these with the probate court.
- Compiles a comprehensive inventory and values assets.
- Settles outstanding debts and tax obligations from the estate.
- Distributes assets to beneficiaries according to the terms of the will and law.
Help your executor by choosing wisely.
Choose someone you not only trust, but who will be capable of handling the complex responsibility of being an executor. Ideally, your executor should be organized, detail-oriented, a good communicator, and willing and able to take on the necessary amount of work.
Set your executor up for success.
Here are a few things you can do to make your executor’s job easier:
- Keep your will up to date. Revisit your will periodically to make sure that it aligns with your changing wishes and circumstances. For example, significant life events like marriage, children, or getting divorced may be times to re-evaluate and update your will.
- Be transparent and clear about your wishes. Make your will as specific as possible–from how you want your assets distributed to who you name as guardians of your children. Use clear language to minimize confusion or error in interpreting what you mean.
- Keep your will safe. Keep your original will in a safe place that’s easily located, and give a copy to your executor for safe-keeping as well. Let your executor know where to find your will as they will need to file the original with the probate court.
- Keep your financial records in good order. Keeping organized records of your financial accounts, assets and debts will reduce the amount of time your executor may be required to spend researching and locating accounts.
Help Your Heirs:
Because heirs don’t have any responsibilities to manage the estate, they may become frustrated and slow down probate administration–which results in a higher cost to the estate. The following may help keep the process flowing smoothly:
- Encourage heirs to be patient and manage expectations. The start of the probate process involves quite a bit of activity. However, as the executor then gathers assets and settles debts and taxes it may seem that nothing is happening. When heirs understand the length of time required to administer an estate they may be able to wait and not cause delay with excessive requests or complaints.
- Communicate with the executor at reasonable, regular intervals. While the executor may provide regular status updates, the executor will be busy and may not communicate as often as heirs my wish. Heirs Should feel free to check in with the executor periodically to find out about the progress, as well as to raise questions or concerns. But keep communication reasonable. Remember, not all assets are as simple to administer as they may appear.
- Be prepared to provide documentation. The executor may need documentation such as birth certificates, marriage certificates and tax returns. If heirs have documents ready if the executor needs them, that will help keep the administration moving forward.
Get the right help.
Whether you are planning your estate, an executor of an estate, or an heir it’s important to seek the advice of experienced estate planning attorneys to plan, prepare and get organized.
At Messner Reeves, the experienced attorneys in our Private Client Group have helped plan and administer hundreds of comprehensive estate plans for individuals and families, investors and business owners. We work closely with you and your advisors to navigate the intricacies of estate, tax and asset protection planning, and help smooth probate, guardianship and conservatorship administrations. Contact us today.
