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How to administer an estate

When a person dies, all of his or her possessions – real estate, money, stocks, personal belongings, etc. – become a part of his or her estate. Estate administration refers to the process of collecting and managing the estate, paying any debts and taxes, and distributing the remaining property to the heirs of the estate. The heirs of an estate are determined by will, and if there isn’t a will, by the intestacy (which means dying without a will) laws of each state. FindLaw’s section on Estate Administration Basics provides information on how to administer an estate, what being an executor means, and what happens to a person’s debts after his or her death.

What Is the Process for Administering an Estate?

Put simply, estate administration is collecting, managing, and distributing a deceased person’s estate. Each state has its own probate laws, which govern the requirements and process for administering an estate. In some cases, an estate may need to be administered in more than one state. Generally, the state in which the person lived in at the time of death is where the estate goes through probate. However, real estate is governed by state law, so real estate in another state might have to be probated in that state. Several states have adopted a version of the Uniform Probate Code, which is designed to simplify the estate administration process and provide similarity among probate laws from state to state.

The Duties of an Executor

The executor is responsible for locating and collecting all of the deceased’s property, making sure any debts and taxes are paid off, and distributing the remaining property and money to the entitled parties. Although anyone can be an executor, the executor must perform with diligence and in good faith. Usually the executor is designated in a will. If the deceased didn’t leave a will, an administrator is appointed by the probate court. If the probate process is complicated, the executor is entitled to hire an attorney – at the expense of the estate – to help him or her with the process. While the executor is not entitled to any proceeds from the sale of property of the estate, generally he or she is entitled to a fee as compensation for administering the estate.

Who Is Responsible for a Deceased Person’s Debts?

Generally speaking, once a person dies, his or her debts are paid off from his or her estate, and if there isn’t enough money to repay the debt, the debt dies with the person. Relatives or beneficiaries of the will are usually not responsible to pay the deceased person’s debts. However, if the relative or beneficiary owned part of the debt or received substantial benefits from the debt, he or she would be responsible for repaying the debt. For example, credit card debt belongs to the account holder. If, however, a relative co-signed on a loan or the credit card was from a joint account, the co-signor or other account holder would have to pay the debt. It’s important to note that in community property states – where property acquired during marriage is considered jointly owned – the surviving spouse may be liable for the debt.

Hiring an Attorney

If you’re in charge of administering an estate and have questions about it, you may want consult with an estate planning attorney. It would also be a good idea to contact an estate planning attorney if you have questions or concerns regarding the debt left by a person who has passed away.

Learn About Estate Administration Basics

How to Administer an Estate

A guide to administering an estate. Learn about which state law applies, the difference between formal and informal probate, appointing a personal representative, inventorying and distributing the estate, and much more.

What Does an Executor Do?

A broad overview of the executor’s role in estate administration. Learn about the many duties handled by the executor, including overseeing the disposition of property, paying off debts, and more.

Estate Administration: The Will After Death

A look at how wills are treated upon the death of the testator. This article offers information on how probate works, the formal requirements for wills, and limitations on wills.

Debts After Death

Learn about what happens to a person’s debts after he or she passes on. You’ll find information on whether you’re responsible for a deceased relative’s debts, how credit card debt is treated after death, and more.

How to File to Be an Administrator of Estate After a Death

When a person passes away without a will or without designating a person or organization to oversee their assets, someone must still serve in that role under state law. If the deceased designates a person to take on this job of managing the estate, paying off remaining debts, and distributing assets to heirs and the court appoints that person, they are called the executor. If the estate does not have an executor, the court appoints an administrator to accomplish those tasks.

How to administer an estate

Though requirements and expectations for administrators vary by state, being appointed to the role generally requires similar steps. Here is the usual process for filing to be an estate administrator.

1. Determine who has priority to serve.

State law establishes the qualifications for an administrator and sets the order of priority that the court must follow in making an appointment. In most states, the spouse of the person who passed away has first priority, followed by adult children then parents and siblings. Some states impose additional requirements. For instance, in Texas, an administrator may not be convicted of a felony. You can often find your state’s rules on the website of your state court system or the state bar association.

If you do not have first priority among the surviving relatives, it is best if everyone can reach an agreement to allow you to serve. Obtain a written waiver from those with priority over you declining to serve and nominating you instead.

2. Prepare to file a petition to administer.

Find out which court has jurisdiction over probate matters in the deceased’s county of residence. Most often, this is the county probate court or surrogate’s court, but it may be a district court in less populous counties. Again, you can use court or bar association websites to locate this information.

Call the court clerk’s office and ask about the requirements for filing a petition to administer an estate. You want to know:

  • What supporting documents you must file with the petition
  • Whether you must schedule a court hearing on the petition
  • How much the filing fees are and how to pay them
  • Whether you must also file a petition for probate

You may also need to file a bond with the court. Ask whether this is necessary and what the procedure is.

3. Collect the necessary information.

Before you file your petition, you must collect a good deal of information. First, you need the deceased’s name, address, birth date, and death date. You also need the names and addresses of all the deceased’s living relatives.

Next, compile a preliminary list of the deceased’s assets and estimate their value. You likely need to include this information with the petition, though you will prepare a more complete catalog of the assets and their appraised value after you have been appointed administrator.

Be sure you have a certified copy of the death certificate. If the deceased left a will, you must submit it along with the petition for probate. You also need to bring any waivers that other relatives have signed declining to serve as administrator.

4. File the petition with the court.

When you have gathered all the information and documents, take them to the court clerk’s office and ask for copies of the petition forms you need. Complete the petition, sign and date it, and attach the supporting documentation. File the petition and the other materials with the clerk, pay the filing fee, and schedule a hearing if necessary.

Once you have filed the paperwork, you must send all the other relatives a copy of the petition and notice of any hearing date. Generally, you may do this by first class mail, but be sure to request a return receipt in case you need proof of service. You should also check your state rules regarding service. In California, for example, the person petitioning to be administrator cannot mail the copies herself but must ask someone else to do it for her. The clerk’s office cannot mail documents for you.

Managing an estate can seem like a daunting task, particularly during the difficult time following the passing of a loved one. An online service provider can help bring order to the process by providing answers to common questions and the option to consult an experienced attorney.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

What is an administrator of an estate? What are common administrator of estate duties? We answer these questions and more in this article.

How to administer an estate

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“Administration of Estate” refers to the actions necessary to guide an Estate through the probate process. This involves paying off any debts, closing accounts, and distributing property to heirs after someone has died. The exact responsibilities will be specified within the deceased individual’s Estate Plan or by state law.

The Administration of Estate process can be difficult to understand, as it touches on several important aspects of Estate Planning. The following guide aims to answer any questions you may have about the topic:

What is an Administrator of an Estate

The Administrator of an Estate is the person in charge of compiling assets and managing the Estate through probate court. An Administrator, or personal representative, is typically named within the Estate Plan. If the deceased did not have a Will or Estate Plan, the Administrator will be nominated by the court. This responsibility will typically fall on a surviving spouse or the closest living relative (also called the next of kin).

In most cases, the Administrator of Estate will be compensated for their duties — as managing an Estate through probate can be a time-consuming process. Often, the deceased will opt to leave money or other assets to the Administrator within their Will. If there is no Will, the state will decide how to compensate the Administrator (usually with a percentage of the Estate).

What does an Administrator of an Estate Do? Common Administrator of Estate Duties

The exact role of the Administrator of an Estate will vary depending on the size of the Estate, and whether or not there was an Estate Plan. That being said, here is an outline of typical Administrator of Estate responsibilities:

Gather the belongings, assets, financial accounts of the deceased

Take note of any outstanding debts or bills

File an inventory of all assets and debts with the Court

Issue a Notice to Debtors and Creditors

Request life insurance policies payable to the Estate

Settle any debts and collect any money owed to the deceased

File state and federal tax returns for the Estate, as well as any gift tax returns that are needed

Communicate with the heirs and beneficiaries about the Estate

Distribute assets and property according to the Estate Plan or state law

What’s the Difference Between Executor and Administrator of Estate?

The difference in an Executor and Administrator of Estate is how the two roles are established. An Executor is named within a Last Will and Testament, while the Administrator of Estate is typically appointed if someone dies without a Will. Both the Executor and Administrator of Estate must report to probate court, though Executors generally have more power when handling assets. The reason for this is because the Executor is typically granted additional responsibilities within a Will, while an Administrator of Estate is guided by state law. Overall, the roles and responsibilities of each position are quite similar. Read our guide on the responsibilities of an Executor to learn more.

Other Frequently Asked Questions About Administration of Estate

The Administrator of Estate is a unique responsibility — read through the following commonly asked questions for more information about this role:

How to File for Administrator of Estate

If you are wondering how to be appointed as the Administrator of Estate, the first step is to cite your state’s Intestate Succession Laws. This will help you determine who will serve, though the responsibility generally falls on the surviving spouse. Once you have determined who has priority to serve, file a petition with the county court to initiate probate.

Before filing, you should gather information about the deceased, including their birthdate, full name, address, and a list of their living relatives. You will also need a preliminary list of the deceased person’s assets and accounts. Contact your county clerk to learn exactly which information to include — then submit these documents along with the death certificate. At this point you can sign the petition, submit your filing fee, and schedule a hearing with probate court (when necessary).

Can an Administrator of an Estate Sell Property?

Another common question about Estate Planning is whether an Administrator of Estate can sell the deceased person’s property. The answer depends on state law, but generally speaking the Administrator can sell property in order to pay outstanding debts on behalf of the Estate. The Administrator will need to obtain court approval before listing or selling the property — and it is generally recommended to work with a probate attorney throughout the process.

Are There Administrator of Estate Fees?

There are Administrator of Estate Fees, as this is a complex and time-consuming responsibility to take on. If there is no Will or Estate Plan, state law will determine how much the Administrator is paid. The fee structure is usually either a percentage of the gross value of the Estate or a percentage of transactions handled. Additional compensation can be expected if the Administrator goes outside of the typical duties, for example if they handle litigation on behalf of the Estate or manage the sale of a property.

Do I Need a Lawyer to Administer an Estate?

You do not need a lawyer to Administer an Estate, though traditionally it is recommended that you work with one. The reason for this is because most individuals do not have Estate Planning experience, and the probate process can be complex. A lawyer will be able to provide guidance as you navigate court proceedings.

If you want to avoid placing this responsibility on a loved one, the best way to move forward is to create an Estate Plan for yourself (and encourage relatives to do the same). At Trust & Will, we aim to make this process as simple as possible — eliminating the need for further legal help or guidance. By writing a comprehensive Estate Plan with the help of our team, you can help prevent any future difficulties.

The Administration of Estate process is a challenging, but necessary requirement after someone dies. If there is no Will or Estate Plan, the role of Administering the Estate will fall on a court-appointed loved one, thus presenting them with a huge responsibility. By learning about the duties of an Administrator you can better prepare yourself should you be selected; and you can begin making your own Estate Plan to help your loved ones to better navigate the process.

The Laws in the State of New Jersey define who has the first right to apply for Administration of an estate.

General administration is used when a resident of New Jersey dies intestate (without a will). It is the duty of the heir or the person desiring original letters of administration to make application to the Surrogate of the county in which the intestate resided at death.

For intestate estates, heirs according to the statute of descent and distribution have priority

  1. spouse or registered domestic partner
  2. adult children of the decedent
  3. guardian of minor issue first entitled, if no surviving spouse or adult children
  4. decedent’s parents
  5. brothers and sisters
  6. grandparents
  7. aunts and uncles
  8. stepchildren

The applicant should appear in the Surrogate’s Office with:

  • Proof of death (Certified Death Certificate)
  • A detailed list of the assets in the deceased’s name.
  • An estimate of the amount owing for debts and taxes.
  • Names & addresses of next of kin (heirs at law).

You will be interviewed by a probate clerk to obtain the necessary information on the estate and who is entitled to appointment, after which the clerk shall prepare the following for signature .

  • Application for administration
  • Affidavit of estate assets
  • Qualification / Authorization
  • Bond *
  • Renunciations or proof of notice
  • Verification of child support law
  • Request to seal death certificate

*A surety bond may be required on the estate; this is like an insurance policy. The bond will be set by the Surrogate when the assets of the estate are determined.

The applicant should inform the clerk as to how many assets stand in the name of the decedent alone, and request the short certificates needed to transfer those assets.

If renunciations are required from other persons having an equal right to be appointed administrator, renunciations must be filed for each said person.

When these papers have been properly prepared and executed and 120 hours (5 days) have elapsed since the decedent’s death, the Surrogate may enter a judgment appointing the administrator and directing the issuance of letters of administration to the applicant or attorney. Once the Surrogate signs a judgment for Administration it cannot be removed at the Surrogate’s Court level.

If the relatives with the same degree of kinship cannot agree on who should act, or the renunciations have not been returned, the applicant may ask that a hearing be set up on the Surrogate’s level (fee $10.00) to determine who will act as Administrator..

If additional assets are found after the initial judgment is signed and the administrator wishes to obtain a number of additional certificates they will have to file an “Affidavit for Additional Funds”. When this occurs, the administrator must present to the court a detailed account of the additional assets.

Minors who will inherit from an estate will need to have a guardian appointed to protect their right to inheritance. Please call the office for more information.

If there are no next of kin any fit person or anyone who is owed a debt from the estate has the right to apply after 40 days have passed. The person who paid for the funeral expenses or the landlord who is owed back rent would have a right to apply for Administration.

This would require that the applicant present to the court valid proof of their claim. The Clerk would set up a hearing and the Attorney General would be noticed; a date would be set and the hearing would occur on the Surrogate’s Level. There is a $10.00 fee for a hearing.

Minors who will inherit from an estate need to have a guardian appointed to protect their right to inheritance. Please call the office for more information.

An Affidavit of Surviving Spouse or Next of Kin can only be used when the decedent died without a Will. The rules for the affidavit are similar however, the amounts vary. In the case of a Surviving Spouse the limit for an affidavit is $20,000.00 for the Next of Kin it is $10,000.00.

Surviving Spouse – would be the only one entitled to inherit and file this application. The application must specifically state the depository of the asset, the value and any identifying numbers. You will receive one letter for each asset

Next of Kin – this would include anyone entitled to inherit by intestacy law. If there is more than one individual consents must be obtained from the other beneficiaries. The affidavit must once again include the depository of the asset, the value and any identifying numbers. The entire value of the estate must not exceed $10,000.00.

In both cases the applicants will be swearing under oath that there is no Last Will and Testament of the deceased and that they are the closest next of kin. All degrees of kinship should be listed (in the case of a spouse, children of the decedent will be listed.

For Next of Kin you should include the relationship to the deceased. All consents must be signed in front of a Notary Public and acknowledged with the expiration date of commission and the seal of the Notary.

This article will give you a basic overview of what goes into the process of administering an estate. Before taking any steps in administering the estate, you should consult with your attorney.

This article will give you a basic overview of what goes into the process of administering an estate. Before taking any steps in administering the estate, you should consult with your attorney.

This article will not deal with the work that the attorney performs in handling the probate estate, but rather will focus on the role of the Executor or Trustee of the estate. To learn more about how to prevent your own estate from going to probate, you can read this article: Estate Planning Goals: Probate Avoidance.

How to administer an estate

1. Opening an Estate Checking Account

You should open a checking account in the name of the estate. Take copies of the letters of office or small estate affidavit and death certificate with you. You will also need to provide the bank with the employer identification number (EIN) of the estate.

2. Keep Good Records

The record of each receipt and payment will be used in an accounting. Keep detailed records about each check written and amounts received. List each item separately.

3. Managing Estate Receipts

  • All receipts should be deposited into the estate checking account.
  • Excess cash in the checking account should be invested in an interest-bearing account or investment.
  • Checks in the decedent’s name should be reissued in the name of the estate. Some checks such as social security or pension checks may need to be returned.

4. Payment of Debts and Claims Against the Estate

  • Debts and expenses will be paid from the estate checking account.
  • You may pay small routine bills after letters of office have been issued to you by the court and the estate checking account is established.
  • If the Estate is going through Probate, creditors of the estate have six months to file claims. If there is a question as to whether all creditors will be paid, then it is improper to pay claims before the expiration of the claims period.

5. Distribution of Assets to Heirs and Legatees

  • Personal property should be distributed according to the terms of the will or trust. Personal property not specifically disposed of by the will may be sold.
  • Distribution of estate assets other than personal property to heirs or legatees should be made only after consultation with your attorney.
  • Life insurance proceeds may be paid to the designated beneficiary.

6. Information Gathering About the Estate

You will need to gather a complete list of the assets owned by the decedent, any trusts established by the decedent or in which the decedent had any interest or involvement, and any life insurance owned by the decedent or insuring the decedent’s life.​

BC Estate Administration – Applying for Probate & Letters of Administration

Estate administration in BC often involves applying to the court for a grant of probate and or letters of administration. Get legal advice to avoid delay.

Contact us today for a consultation (250) 888-0002

Estate Administration in BC

Estate administration in BC involves gathering all of the assets of the estate, paying out all of the liabilities and distributing the assets of the estate to the beneficiaries of the estate. Estate administration is undertaken by either the person named executor in the will, or alternatively a person who has been appointed by the court to administer the estate.

How to administer an estate

Preparing an estate to be administered or administrating an estate can often require legal advice and assistance.

What is Probate?

A will is a legal document that lets the court know what to do with a person’s estate after they die. Often a will needs to go through probate – a process that ensures a will is real and was left by the deceased and the executor named in the will has the authority to deal with the estate of the deceased person. Not all estates need to go through probate, estates that do not include land or large bank or investment accounts often may be administered without the need to obtain a Grant of Probate. When the assets of estate have a value of less than $25,000, probate fees are waived. When the assets of the estate exceed $25,000, probate fees amount to approximately 1.4 percent of the value of the assets.

To obtain a grant of probate, an application to the court is made by filing a requisition and evidence in support of the applications including:

  • A certificate of wills notice search,
  • An affidavit of the executor attaching the original will and codicils to the will along with any memoranda that are referred to in the will,
  • A detailed statement of the deceased’s assets and liabilities,
  • The plan for distribution contained in the will,
  • An affidavit advising the court of the persons who inherit under the will, those would have inherited had there not been a will and those entitled to claim against the will under the Wills, Estates and Succession Act, and;
  • An affidavit confirming that those who inherit, would have inherited had there not been a will and those entitled to claim against the will have been served with the notice of probate application.

In some circumstances, other affidavits may also be needed – and it may also be necessary to inform the British Columbia Public Guardian and Trustee of the application for probate.

In addition to a grant of probate, a person may also need to apply for “Letters of Administration” from the court.

What happens to estate administration in BC if there is no will or the executor declines to administer the estate?

If the executor named in the will declines to administer it, the court must appoint someone to act as administrator of the estate. Similarly, if a person dies without a will, they are said to have died “intestate”, and the court must appoint someone to act as administrator of the estate. The appointment as an administrator over the estate by the court is known as a grant of letters of administration. Letters of administration provide a person with official recognition of their role with respect to the estate and will enable them to perform their obligations to recover money owing to the estate or to transfer assets in accordance with their obligations as administrator of the estate. The basic fee paid to the government for commencing the application for the grant of administration is $200, and is waived if the entire value of the estate does not exceed $25,000, in addition there are administration fees paid to the government that vary according to the value of the estate.

How can a lawyer help with estate administration in BC?

Getting legal advice on how to prepare an estate for administration or to administer an estate can save time and ensure that the process goes as smoothly as possible. Legal fees associated with estate administration are based on the time a lawyer spends to advise a client or administrate the estate on behalf of the client and can be claimed from the estate as an expense. Legal fees are in addition to the fees paid to the government for probate or letters of administration. Our lawyer, Don Linge, has the knowledge, expertise and experience to prepare an estate for administration and can complete all the steps to ensure the estate is fully handled and can advise on the legalities involved. We are here to help you with your BC estate administration and can be reached at 250-888-0002 or via email.

How to administer an estate

Even if you die without a will or without naming an executor in your will, someone still has to take charge of managing and closing your estate. The person who assumes this role is typically called an administrator rather than an executor. Each state has a way of determining who should act as administrator, so if you would like to volunteer, you’ll have to operate within your state’s probate process. While the minute details of the process will differ between probate courts, the broad strokes of the process will be the same.

Review the Estate

When you apply to be the administrator, the probate court will more than likely ask you to provide estimated values of the assets in the estate. So before you start the application process, it’s a good idea to get an estimate of the estate’s worth.

This isn’t to say you should conduct an in-depth inventory of the assets. In fact, you may not even be able to, since the court hasn’t given you any authority yet. Just an estimate of the assets in the estate and their worth will suffice.

Determine the Court’s Priority for Appointment

How to administer an estate

In cases where there isn’t an executor, probate courts will appoint people according to their own priority list. These lists typically start with surviving spouses and then adult children. However, your probate court may vary, so it’s a good idea to confirm.

If you are, say, a sibling of the deceased, and the court’s priority lists a surviving spouse and children above you, you’ll need to obtain written waivers from the spouse and children (and anyone else above you) ceding the role to you. Some states, like Oklahoma, list the surviving spouse or the spouse’s choice as the top priority. In that case, you’d need only to have the spouse give approval.

Ask the Probate Court what You’ll Need

You’ll need some supporting documentation to complete your petition for administration. Exactly what you’ll need will vary from court to court. So, it’s best to ask the court what you’ll need ahead of time. It’s safe to assume you’ll need at least the death certificate of the deceased, photo identification, asset estimates and money to pay the filing fee. Some courts may request copies of the death certificate in addition to the original.

Obtain and Fill Out a Petition

How to administer an estate

Once you’ve prepared sufficiently, it’s time to head to the probate court and ask for the petition for administration. The appropriate probate court will likely be the court in the county where the deceased was living at the time of death.

The petition will vary slightly from court to court. However, you can count on including the deceased’s name, birth date, death date and last address, asset estimations for the estate and names and addresses of all living relatives.

Once you complete the petition and the court decides that it’s satisfactory, it will appoint you as administrator. You’ll receive the necessary authority to manage the affairs of the estate throughout the probate process. At this point you will effectively serve the role of executor, with all the obligations, limitations and fiduciary duty expected of that role.

Bottom Line

You can administer an estate even if the deceased died without a will or failed to specify an executor. If your relationship to the deceased doesn’t make you the probate court’s default choice for administrator, you’ll need to get permission from the relatives ahead of you in the priority order.

Serving as an estate’s administrator is a big job that can take months or even years to complete, so you should go into the process with clear eyes if you’re thinking of petitioning. You should also go in understanding that you have an obligation to act in the best interests of the estate and its beneficiaries.

Once you’ve been granted the power of administrator, you can start the process of administering the estate, paying off debts, wrapping up affairs and eventually distributing assets to beneficiaries.

Cobb County Probate Lawyer and Marietta Estate Administration Attorney

When a loved one dies, his or her estate usually must go through a court-managed process called probate or estate administration. In this process, the assets of the deceased are managed, the debts are paid and the balance of the property is distributed. If your loved one’s assets were owned by and titled in a well drafted and properly funded revocable living trust, it is likely a court-managed administration will not be necessary, but a successor trustee will take action to administer the distribution of the deceased person’s assets. The amount of time needed to complete the probate of an estate will depend on the size and the complexity of the estate as well as the local rules and schedule of the probate court.

Probate is the court-supervised legal process through which a decedent’s assets are collected, his or her debts are paid and then the remaining assets are distributed to the decedent’s heirs or beneficiaries.

Every probate estate is unique, but most involve the following steps:

  • A petition is filed with the proper probate court.
  • Notice is provided to the beneficiaries under the Will and to statutory
  • The petition seeks the appointment of a Personal Representative, called an Executor, if there was a Will, or an Administrator, if there was no Will.
  • The Executor/Administrator may have to file an Inventory and appraisal of the estate assets.
  • The debts owed to creditors are paid out of the assets in a statutory order of priority.
  • Estate assets may be sold.
  • Estate taxes, if applicable, will be paid.
  • Remaining assets are distributed to the beneficiaries/heirs.

When the Executor/Administrator has paid all debts, filed the required tax returns, and distributed all of the estate’s assets, they file a Petition for Discharge with the court, asking to be formally relieved of his or her duties. If the court confirms that the Executor/Administrator has performed all the duties required, the discharge will be granted. This will close the estate and release the Executor/Administrator from any liability.

If you are the Executor named in a loved one’s Will and you would like to review the steps to probate the Will, please call us at 770-425-6060.

For More Information on the Probate Process in Georgia, please see:
Our Free Guide: “Seven Steps To Handling Your Loved One’s Estate”

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FREQUENTLY ASKED QUESTIONS

What happens if someone objects to my Will?

An objection to a Will is also known as a “Will contest” and it occurs fairly often in probate cases, but they can be very expensive to litigate.

To be able to contest a Will, a person must have legal “standing” to raise their objections. This usually happens when, for example, children are to receive unequal shares under the Will, or when distribution plans change from a prior Will to a later Will. In addition to disputes over the distribution of assets, Will contests can also be a fight over the person chosen to serve as Executor.

Does probate administer all property of the deceased?

Probate is the process by which title is transferred from the name of the deceased to the names of the beneficiaries.

Certain assets are called “non-probate assets” and do not go through probate. These can include the following:

  • Property owned as “joint tenants with right of survivorship.” This jointly owned property passes to the co-owners by operation of law and does not go through probate.
  • Retirement accounts like IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “payable on death” (POD) designations, brokerage accounts with “transfer on death” (TOD) designations, or “in trust for” designations.
  • Property owned by a living trust. Legal title to this property passes to, and is distributed by, the successor trustees without having to go through probate.

Does an Executor get paid for serving in that role?

Executors are entitled to reimbursement for all legitimate out-of-pocket expenses they incur in the process of managing and distributing of the deceased person’s estate. The Executor or Administrator may also be entitled to statutory fees, which in Georgia include, for most kinds of assets, a commission of two and one half percent (2.5%) of the value of the assets which come into the estate, plus two and one half percent (2.5%) of the value of the assets which are paid out of the estate, either as payments to creditors or payments to heirs or beneficiaries. Other percentages apply to different types of assets.

The Executor is required to carry out his or her duties as a fiduciary on behalf of the estate with the highest degree of integrity. Executors or Administrators can be held liable for mismanagement of estate assets in his or her care. It is recommended that the Executor hire an attorney and an accountant to advise and assist him or her with his or her duties.

How much does probate cost? How long does it take?

The cost and length of a probate can vary widely, depending on a number of factors including the value and complexity of the estate, the existence or non-existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors about the debts of the estate can also add a great deal of cost and delay. Common expenses of a probate estate include executor’s fees, attorney’s fees, accounting fees, court fees, appraisal costs, and surety bonds. These can add up to somewhere between to 2% to 8% of the total probate estate value.

The Georgia Probate Process

The Georgia probate process can be time consuming and expensive to complete. A typical probate lasts at least 8 months to a year. A complicated estate can take more than a year to complete.

After the petition to probate the will or estate is filed, these are the duties and responsibilities of the personal representative (executor ort administrator) of the decedent’s estate in Georgia:

  1. Appointment by the Probate Court: Letters Testamentary or Letters of Administration are issued.
  2. Gather and collect ALL assets of the estate; protect, insure, manage and invest.
  3. Ascertain ALL debts and expenses of administration in accord with statutory priority.
  4. Sell or liquidate assets IF NECESSARY as required r permitted by law.
  5. IF REQUIRED, file income, estate and other tax returns.
  6. Distribute remaining Estate property as required in Will or laws of descent and distribution.
  7. IF REQUIRED, file inventory, returns, and any reports with the court.
  8. Close Estate; file Petition for Discharge.

The only way to avoid probate in Georgia is to create a living trust and fully fund it (transfer titled assets to trust and change beneficiary designations on life insurance and retirement accounts to the trust). To learn more about and help you whether a will or a living trust is the best option for you and your family, please call us at 770-425-6060 for a complimentary Georgia Family Treasures Planning Session.

Probate of an estate can be a complicated process, and an executor isn’t always up to the task of tackling it alone. It’s no reflection on their abilities, but rather the result of the numerous legal steps through which an estate must pass on its way to settlement.

Lawyers who assist with the probate process charge for their work in one of three ways: by the hour, as a percentage of the gross estate or by a single, flat fee that encompasses all work from start to finish. There are some pros and cons to each option, and an executor can usually request one arrangement over the others. It never hurts to ask for a different fee arrangement other than what the attorney normally charges, but fees can be governed by state rules and laws.

What an Estate Lawyer Does

Probate is required to move property and assets from the ownership of the deceased into the names of living beneficiaries, assuming that there’s no built-in mechanism in place to achieve this. For example, property held as joint tenants with rights of survivorship passes directly to the survivor by operation of law. The same applies to joint bank accounts, while “payable-on-death” accounts and assets with named beneficiaries are set up to go to the beneficiary upon the primary account holder’s death without the necessity of probate.

All other assets require probate, however, and it can be a legal minefield fraught with myriad requirements, from drafting deeds to filing various accountings with the court. Unless it’s a very small and simple estate and state law provides for summary or simplified administration, an executor can’t simply present the death certificate to a bank or other institution and expect them to automatically transfer ownership of assets or hand over cash.

Who Pays the Lawyer?

Executors should take a deep breath if they’ve been asked to administer an estate and they’re panicking a little over how much it will cost them. Executors are not responsible for personally paying any professionals from whom they seek assistance during the probate process, including an attorney. Probate lawyer fees are always paid out of the estate.

Of course, the estate’s beneficiaries might feel a bit of a pinch because this depletes the value of the estate, leaving less available to transfer to the ownership of others.

Some states require that the probate court approve the amount of compensation an attorney receives unless all beneficiaries consent to the fee or it falls within statutory “reasonable” guidelines. What’s considered reasonable can vary by state.

Fees Paid by the Hour

Some attorneys charge an hourly rate for their services, which can range from $150 to upward of $300. It can depend on several factors, including the lawyer’s experience, whether they’re a general practitioner or a dedicated probate lawyer, whether they’re part of a firm or work on their own, as well as their location. Big city attorneys invariably charge more than their more rural counterparts, and probate lawyers’ fees tend to be steeper than those of general practitioners. After all, they’re experts when it comes to handling probate issues.

And the term “hourly” isn’t quite accurate. Most estate lawyers charge for their time in six-minute increments so the estate is billed for how many minutes they devote to working on it…day by day by day. The estate will pay for six minutes or one-tenth of their time if they take a phone call on the executor’s behalf that lasts just three minutes. It will pay for 18 minutes if the attorney spends 15 minutes drafting a letter – and yes, they keep meticulous records of their time.

But there’s a bright side here. Attorneys often delegate some routine work to paralegals and young associates – under their supervision, of course – and the hourly rates of these individuals are usually less, sometimes significantly. The estate won’t have to pay $300 an hour for correspondence drafted by a paralegal. Even so, the executor won’t know what the total fee will end up costing the estate until the end of the road when all the legal work is complete, every minute is accounted for and the estate closes.

A Flat Fee for the Whole Probate Process

Another possibility is that the attorney will ask for one flat fee to handle everything from A to Z rather than microscopically keeping track of every six minutes spent on settling the estate. An experienced probate attorney will be able to gauge how much time they’ll have to dedicate to a case and can accurately round off their hourly rate to one overall number.

The fee will be based on some standard factors that predict how much time the attorney will likely have to invest. Think bickering beneficiaries, lots of complicated assets or significant estate value that could open up the possibility of estate taxes coming due. All these issues will demand the lawyer’s time.

The good news is that with a flat fee, the executor can call the attorney as often as is necessary without worrying that they’re driving the bill sky high in six-minute increments.

A Percentage of the Gross Estate

A lawyer’s third option is to charge a percentage of the value of the estate, but executors should be wary here. This often racks up a pretty significant bill because it’s based on gross value, not the estate’s net value after debts, such as mortgage liens and the deceased’s credit card balances, have been paid and deducted.

If there’s any silver lining here, it’s that the percentage usually decreases as the value of the estate increases. For example, estates pay 4 percent of the first $100,000 of gross value in California, but just .5 percent of the portion of value that tops $15 million. Of course, .5 percent of that much value works out to a really significant bill.

Only a handful of states – Arkansas, California, Florida, Iowa, Missouri, Montana and Wyoming – allow this type of billing, however. And even in these jurisdictions, it’s not required. Attorneys can agree to accept an hourly rate or a flat fee instead, so it could be worth negotiating. Many attorneys offer free initial consultations so executors can find out where they stand during this first meeting before they’re obligated to start paying legal fees.

Costs Are Usually Separate

Keep in mind that none of these three fee options includes extras like court filing fees, recording fees and appraiser fees. They’re almost always extra. The estate is usually just paying for the lawyer’s time with these fee options, so executors should ask to be sure when they’re negotiating a fee arrangement.

The Bottom Line

Whichever option an executor – or their chosen attorney – decides on, they should be sure to get all the details in writing. Reputable lawyers will be glad to sign a fee agreement, and some states even require it. The agreement should not only cite the payment arrangement, but also when the estate will be billed, when payment is due and in the case of hourly fees, how much the estate will pay each individual who performs work on it.