Avoid These 6 Things | Probate Process
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Avoid These 6 Things that Can Slow Down the Probate Process

Jul 11, 2022 | Articles, Probate

By Mary Ellen Flynn, Esq.

The probate process is notorious for being long, drawn-out, and expensive.

Many people who seek to avoid probate often create revocable living trusts to handle their Estates more privately and efficiently. However, suppose you end up serving as the Personal Representative of a loved one’s estate.

In that case, you should avoid several things that can slow the probate process.

1. Not knowing where the original Will or Trust agreement is

If the decedent executed a Will, you must attempt to locate the original Will and file it promptly with the Register of Wills when opening the Estate. If you cannot find the original Will, but have a copy of it, you are required to get the consent of all interested persons to probate the copy of the Will instead of the original. Interested persons include the decedent’s surviving spouse and children, those who would inherit under the Will, and all other people who would inherit if there were no Will.

Alternatively, if the decedent died with a Living Trust, the distribution of their Estate will likely be determined by the terms of the trust agreement, bypassing much of the probate process. Normally, the attorney who drafts your Living Trust Agreement will also draft a Pour-Over-Will for you, which ensures that all of your probate assets are placed into the Living Trust and distributed according to its terms. You will still be required to open an Estate and file the Pour-Over-Will associated with the trust agreement if there is property that is owned by the decedent but not titled in the name of the Living Trust.

2. Not gathering the decedent’s other important papers

As the Personal Representative, you need to gather all of the decedent’s important papers documenting the assets they held upon their death. This includes account statements from banks, brokerages, and retirement accounts documenting assets for at least the three months before death; life insurance policies; beneficiary designation forms for life insurance, retirement accounts, and payable on death accounts; a copy of the Deed of any real estate owned by the decedent; the original titles for any automobiles, boats, or other vehicles owned by the decedent; and stock and bond certificates. You should also gather any contracts that would affect the distribution of the Estate, including any prenuptial/postnuptial agreements, personal loans, lines of credit, mortgages, promissory notes, and any real estate and automobile leases.

In addition, you should gather together any outstanding bills that may need to be paid by the Estate, including utility bills, cell phone bills, credit card bills, mortgages and personal loans (including lines of credit), real estate tax bills, storage unit bills, medical bills, and funeral and burial service bills.

Further, you will have to request copies of the last three years of the decedent’s federal and state income tax returns and their gift tax returns.

Finally, you should request enough original death certificates to settle the decedent’s affairs. We typically advise our clients to order at least ten.

3. Not gathering the decedent’s business documents

Additionally, if the decedent owned a business, then you should also gather all of the corporate documents of the business, including copies of the corporate charter or articles of incorporation and minutes; a copy of the shareholder’s agreement, operating agreement, or partnership agreement; and original stock or LLC certificates. You should also gather account statements for the business dating back to three months before death, income tax returns for the past three years, business licenses, and any contracts the business is bound to, including leases, loans, and employment agreements.

4. Failing to arrange an appraisal of the estate assets promptly

Within three months of their appointment, the personal representative must file an inventory of the property owned by the decedent at the time of death, indicating the fair market value of each item in the Estate as of the date of death of the decedent. Most assets that are in an estate must be appraised before they are distributed to the decedent’s heirs. Since appraisers tend to have busy schedules, arranging an appraisal as soon as possible is in your best interest.

5. Not meeting deadlines

When the Register of Wills issues you the Letters of Administration, which permit you to access the decedent’s accounts and transfer them to intended beneficiaries, you are then responsible for collecting all of the decedent’s assets and titling them in the Estate’s name, and for preparing and filing the necessary inventory and information report, as well as an accounting of the Estate. You will also need to file tax returns on behalf of the Estate. In addition, you will have to pay any creditors who file a proper claim for an outstanding debt and all taxes and administration costs. After accounting for all of the decedent’s assets and paying all creditors, you must distribute the assets to the beneficiaries following the decedent’s Will or applicable law. The Register of Wills will provide you with a deadline to perform the above-mentioned actions. It is essential for you, as the Personal Representative, to be organized, prompt, and good at meeting deadlines.

6. Not talking about the decedent’s Estate with family members

Finally, it is essential to note that what can cause the probate process to be further prolonged is when a family member contests the Will or how the estate assets are distributed. To avoid an inheritance dispute, we first encourage you to hire an estate planning lawyer who can sit down with your loved one before their death to discuss how they wish to distribute their Estate. But second, we encourage you and your loved one to talk to your family members about the inheritance before their death to minimize the likelihood of contested probate.

Navigating the probate process can be tricky. If you need help administering your parent or loved one’s estate, do not hesitate to contact me for a consultation today.

About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.