Probate & Estate Administration
When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration. This is where the assets of the deceased are managed and distributed.
When you lose a loved one, you may be faced with a maze of legal issues. Stellpflug Law, S.C. attorneys will assist you with compassion and understanding. We have extensive experience in opening, administering, and handling probate matters. If probate is not necessary we can assist with real estate holdings and tax issues.
Stellpflug Law, S.C. attorneys know the steps to take toward successful results on the following issues:
- Estate Taxes
- Fiduciary Income Taxes
- Settlement of Estates and Trusts
- Summary Assignments
- Summary Settlements
- Transfers by Affidavit
- Will and Estate Disputes
Frequently Asked QuestionsWhat is probate?
Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in his or her will. Typically, the executor named in the will starts the process after death by filing a petition in court and seeking appointment. The executor would then take charge of the assets, pay the debts and, after receiving court approval, distribute the rest of the estate to any beneficiaries. If a person dies intestate (without a will), a relative or other interested person could start the process. In such an instance, the court would appoint an administrator to handle the estate. Personal representative is another term used to describe the administrator or executor appointed to handle an estate.Does every deceased person's estate have to go through probate?
The answer is no. If property is held in joint tenancy, which can be determined by looking at the deed or document where the decedent is named with another person or persons as joint tenants, such property does not have to go through the probate court. The property can be transferred to the surviving joint tenant by use of simple documents and death certificates. Also, certain "Payable on Death (P.O.D.) bank accounts where the decedent is a trustee for someone else, do not have to go through probate, and can also be simply transferred by presenting a certified copy of a death certificate.
Estates with total assets less than $100,000.00 and no real estate, do not need to go through the probate court. This procedure is called Summary Administration, where certain affidavits are presented to banks, etc., so the person entitled to receive the asset may receive it without going through the probate court.
Finally, living trusts, if drafted properly and all formalities followed (such as properly transferring property into the trust from the decedent's name), need not go through probate. What should we do if we think the decedent had a will, but we cannot locate it?
What happens if someone objects to the will?
- As a general rule, most people keep their wills in their safe deposit boxes. Check any bank statements that arrive in the mail and contact that bank to see if the decedent had a safety deposit box. If the decedent had a safety deposit box, arrangements can be made to open the safety deposit in order to retrieve the will or at least determine whether or not it is in the box.
- Check with the decedent’s attorney. The decedent's family attorney should be contacted in order to determine whether or not he or she has a copy of the decedent's will.
- Check with other relatives and close friends of the decedent in order to see if they know where the will might be, or whether they recall the decedent actually executing a will.Some friends may have even been witnesses to the will, as every non-handwritten will must be witnessed.
- Sometimes a will may be filed for safe keeping with the probate court in the county where the decedent last lived. However, that is very rare.
An objection to a will, also known as a “will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.
In order to contest a will, one has to have legal “standing” to raise objections. This usually occurs when, for example children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as executor.
If the deceased had a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
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