Frequently Asked Questions about Probate and Estate Administration

Q: What is the purpose of the probate procedure?

A: The probate procedure is the court procedure by which a will is proved to be valid or invalid. Creditors of the estate have the opportunity to file claims against the estate and receive payment of those claims. After the administration fees and creditor claims are paid, the assets of the estate are distributed.

Q: What are methods for preserving assets of the probate estate?

A: There are many ways to preserve probate estate assets. In association with an attorney and tax advisor, you can:

• Determine whether administration expenses and casualty losses should be reported on the estate tax return or on the estate's income tax return.
  
  
• Consider whether there are income tax savings opportunities on the decedent's final return (such as whether or not a joint return should be filed with the surviving spouse).
  
  
• Consider whether assets should be valued at the date of the decedent's death or six months later (or, if the assets have been distributed prior to six months after the decedent's death, the date of the disposition of the assets).

Your attorney and tax advisor can offer more strategies and suggestions specific to your needs.

Q: What is a will contest?

A: A will contest is a legal action that challenges the validity of a will and/or the terms of the will. A will may be invalid if it was the result of forgery, undue influence, inadequate execution, or other issues. A later will may invalidate an earlier version.

Q: What type of assets are typically non-probate assets?

A: Non-probate assets can be transferred without oversight by the probate court. Some examples of non-probate assets are proceeds from life insurance policies, an IRA account, a 401(k) account or any other taxed deferred retirement plan account with a named beneficiary.

Q: What role does the executor play in the probate process?

A: The executor is responsible for initiating the probate proceeding, collecting and inventorying assets, collecting debts owed to the estate, distributing assets to the estate, and closing the estate. Because of the numerous details and technical requirements that must be satisfied, attorneys experienced in probate and estate administration are often employed to guide the estate through the probate process. The executor is entitled to compensation for time and expenses spent during the process.

Q: What are the advantages of avoiding a probate proceeding?

A: The probate process can be slow and can often tie up property for several months. In addition, it can be costly since attorney fees, executor fees, and court fees are paid out of the estate.

Q: Are their ways to avoid the probate process?

A: There are several methods to use to avoid the probate process. These methods include creating a joint ownership with right to survival in property such as real estate, automobiles, and other titled property; making beneficiary designations on accounts such as payable-on-death (POD) accounts and transfer-on-death (TOD) accounts; and placing property in a Revocable Living Trust. Your attorney can help you manage your property to avoid probate and to move property smoothly to your heirs after your death.

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