What is Estate Administration?
Estate administration is primarily the method through which a deceased person’s estate is distributed to beneficiaries and heirs, and through which outstanding debt is paid off. You may have heard this referred to as “probate.” However, probate is only one of several ways that an estate is administered, and it is often unnecessarily complex. There are many easier and cheaper methods to administer an estate that an experienced estate administration attorney can evaluate to see what is right for your situation.
Probate and a Last Will and Testament: The More Complicated Process
The Probate Clerk at your local courthouse will accept requests to “probate” a Last Will and Testament or to “qualify” as an Executor or Administrator. This is the probate process – formally filing for an appointment at Court and subsequently being overseen by the local Commissioner of Accounts to which the Court assigns your case for supervision.
When your loved one dies, one of the first steps is to locate their Last Will and Testament. This is often kept in a safe deposit box, with a trusted attorney or banking institution, or in an otherwise secure location. Locating the original Will matters – copies are problematic and require specialized legal assistance to evaluate. Once you locate the original, your attorney can advise you what do to with it – whether or not it needs to be probated and if so, which courthouse will accept the probate request. Probating the Will is not always required, though it is usually a good idea. This is an important evaluation that your Estate Administration attorney can assist you with.
The next step is the Qualify the Executor named in the Will. The Executor is the person responsible for administering the Estate – it may or may not be the same person who will eventually inherit from the Estate. There are many reasons why someone may desire to be an Executor, and many other reasons why someone may not. What rights you have to accept or decline an appointment as Executor are important to understand. Serving as an Executor takes a tremendous amount of time and effort, and doesn’t always mean you will receive any benefits from the Estate. Carefully consider these rights and responsibilities with your attorney before you qualify as Executor.
Probate: Yes, it is possible even without a Will
If no one can find the Last Will and Testament, or if your loved one never wrote a Will, you may still need to open a probate account at the courthouse. This is possible even without a Will, though the name of the person who handles the account differs. When there is a Will, the person who administers it is called an Executor. When there is no Will, the person who administers it is called an Administrator. The duties and powers are similar, though there can be important differences that your attorney can explain to you
Common reasons for opening a probate file even without a Will include communicating with banks, handling debts, and ensuring the correct assets are passed to the correct beneficiaries.
How long should the probate process take?
It depends on the facts in your case. Typically, at least a year, especially if there are questions about outstanding debts. However, if there are disputes over the legality of the deceased’s will or about how assets are distributed, probate can take several years.
Though it is the word most people know, opening a probate estate is actually not the first step in many cases. In fact, it’s the last step and should be avoided if at all possible. Why? Probate is expensive, complicated, requires detailed reporting and record-keeping, and takes a long time. One of the primary goals of proper estate planning is to limit or completely avoid assets passing through the formal probate process.
So what are the non-probate options?
- Beneficiary designations are the most common. For example, if your life insurance policy lists a beneficiary, that money passes to the beneficiary automatically – there is no need for the probate process to occur. Typically, only a written application and a certified copy of the death certificate are all that is required.
- Joint ownership accounts are also very common. For example, many bank accounts are titled between two people “jointly with right of survivorship.” Checking with the bank about the titling is the quickest way to answer this question. If the account is titled that way, the money in the account goes automatically to the second person listed when the first passes away.
- Home ownership between spouses typically passes outside of probate. Most married couples who are both on the deed own the house as “tenants by right of entirety.” You may not know this phrase, and it may not even be listed on your deed, but Virginia law places great rights and value in spouses receiving their home when the other spouse passes. No probate account is needed to accomplish this.
- Small Estate Act Affidavits are also possible when the estate is particularly small- many people pass with just a car, a life insurance policy, and a small bank account that was receiving pension or social security. Even if these assets do not pass through one of the other above options, Virginia law provides that small estates do not require the formal and expensive probate process. Check with your lawyer to decide if you can receive or administer your loved one’s estate through a Small Estate affidavit.
If your answers to the following questions are mostly ‘no’ you need to consider hiring a probate attorney to assist you in the probate process:
- Do you understand the probate process and do you feel comfortable with it?
- Did the deceased do any probate-avoidance planning?
- Do all family members of the deceased get along?
- Is the estate small enough not to owe state or federal taxes?
- Does the estate own mostly common assets such as a house, household goods, and vehicles?
- Can the estate afford to pay all debts?
If your answer to any of these questions is ‘no’, you can avoid a lot of headaches and self-inflicted pain if you speak to us about helping in the probate process. We’ve seen it all before and we can help. Contact us today to discuss how we can help you.
Click-through areas for more content
- Avoid probate through proper estate planning
- Can I receive property or assets from a probate early?
- Small Estate Affidavits