Do You have to Go through Probate when Someone Dies?Posted on July 21, 2021 by shieldsandboris
Probate involves assets, debts and distribution. The administration of a probate estate involves gathering all assets owned by the decedent, all claims owed to the decedent and the payments of all liabilities owed by the decedent or the estate of the decedent and the distribution of remaining assets to beneficiaries. If this sounds complicated, that’s because it is, according to the article “The probate talk: Administrators, creditors and beneficiaries need to know” from The Dallas Morning News.
The admission of a decedent’s will to probate may be challenged for up to two years from the date it was admitted to probate. Many people dismiss this concern, because they believe they have done everything they could to avoid probate, from assigning beneficiary designations to creating trusts. Those are necessary steps in estate planning, but there are some possibilities that executors and beneficiaries need to know.
Any creditor can open a probate estate and sue to pull assets back into the estate. A disappointed heir can sue the executor/administrator and claim that designations and transfers were made when the decedent was incapacitated, unduly influenced or the victim of fraud.
It’s very important that the administrator handles estate matters with meticulous attention to detail, documenting every transaction, maintaining scrupulous records and steering clear of anything that might even appear to be self-dealing. The administrator has a fiduciary duty to keep the beneficiaries of the estate reasonably informed of the process, act promptly and diligently administer and settle the estate.
The administrator must also be in a position to account for all revenue received, money spent and assets sold. The estate’s property must not be mixed in any way with the administrator’s own property or funds or business interests.
The administrator may not engage in any self-dealing. No matter how easily it may be to justify making a transaction, buying any of the estate’s assets for their own benefit or using their own accounts to temporarily hold money, is not permitted.
The administrator must obtain a separate tax identification number from the IRS, known as an EIN, for the probate estate. This is the identification number used to open an estate bank account to hold the estate’s cash and any investment grade assets. The account has to be properly named, on behalf of the probate estate. Anything that is cash must pass through the estate account, and every single receipt and disbursement should be documented. There’s no room for fuzzy accounting in an estate administration, as any estate planning lawyer will advise.
Distributions don’t get made, until all creditors are paid. This may not win the administrator any popularity contests, but it is required. No creditors are paid until the taxes are paid—the last year’s taxes for the last year the decedent was alive, and the estate taxes. The administrator may be held personally liable, if money is paid out to creditors or beneficiaries and there’s not enough money in the estate to pay taxes.
If the estate contains multiple properties in different states, probate must be done in all of those different states. If it is a large complex estate, an estate planning attorney will be a valuable resource in helping to avoid pitfalls, minor or major. For more information, request a copy of our book, “What To Do When A Loved One Dies.”
Reference: The Dallas Morning News (May 16, 2021) “The probate talk: Administrators, creditors and beneficiaries need to know”
A Guide to Alzheimer's Care
Planning for someone who has Alzheimer’s disease can be complicated. Proper planning in advance can help alleviate many frustrations as the disease progresses. The time to act is now. Learn the steps for proper planning from our eBook to ensure that things are handled according to your wishes and that you’ve taken the best steps possible to protect your loved ones and your family’s financial security.
When Someday Arrives
We wrote this book for retirees and child caregivers as a tool to allow you to stay at home as long as possible and as a guide of what to do if you or a loved one cannot stay at home. We believe every family has a legacy to protect, and it is our job to protect that legacy. The greatest risk to today’s retiree is a long-term care health crisis. Request your copy today to prepare for what the future holds.
What To Do When A Loved One Dies
Consumers and financial planners, use this book as a down-to-earth primer of estate planning and elder law! Learn about the duties, rights, and responsibilities of the executor or administrator of an estate and what you should expect from competent legal counsel when you have to probate an estate. Find tools such as a guide to help you retain competent counsel and even an estate organizer so you can organize your own affairs.
Don't Go Broke in a Nursing Home
Take back control of your life and provide excellent long-term care for your aging loved ones without going broke in the process. Find creative financial strategies to protect your assets and the quality of care you receive. In addition, learn about little-known tax incentives, how to choose the right home care providers, long-term care facilities, and how to manage the crisis.