What is Probate?

Probate is a process which occurs when a person dies, and a court must dispose of the property of the decedent (person who passed away). The decedent may have certain debts against them and may have a will which directs where the court should distribute the property.

During the probate process, the Probate Court will take probate fees out of the estate and ensure that things like funeral expenses and estate administrator fees are paid. The Probate Court has broad powers to conduct the probate process, direct the conduct of the Personal Representative of an estate, and pass orders to administer the estate.

The Probate process requires a knowledgeable DC Trust & Probate Administration attorney by your side

The probate process is almost always a necessary event after the death of a loved one. Depending on your estate plan, or lack thereof, the Trust and Probate Administration process can prove relatively short or unduly long. In either case, navigating the probate process requires specific knowledge and experience. At Altman & Associates, our probate attorneys have the knowledge and experience to effectively guide you and your family through the probate process.

The probate and trust administration process can be quite complicated. There is typically a myriad of paperwork, financial accounts, insurance policies and retirement plans, as well as real and personal property to deal with. Paying special attention to beneficiary designations and how assets are titled is crucial during this time, and Altman & Associates can help ensure the estate is properly administered.

Is All Property Subject to the Probate Process?

No, some if not most of your property need not be subject to the probate process. Maryland law, for example, only recognizes certain assets as part of your estate for the purposes of probate court.  The “net estate” in probate court is made up “property of the decedent” or person who has died. Therefore, assets which are not solely and directly owned by the decedent are not probate assets.

Generally, the less probate assets in an estate the more simple the probate process, and there are various ways to avoid a lengthy probate process. We work to help you understand your assets and plan for a less stressful future for you and your family.

How Does the Probate Process Become Difficult?

First and foremost, probate happens during the very emotionally difficult time following the death of a loved one. Mourning the loss of a family member and dealing with legal matters in Probate Court can prove both financially and emotionally taxing. There are many additional issues which can creep into the probate process and cause significant stress, such as:

  • If a decedent passes with significant debts to creditors.
  • If a decedent dies “intestate” or without a will, leaving the Probate Court to apportion their estate.
  • When conflicting wills or final wishes exist, or other disputes involving the passing of a decedent’s property arise.
  • When a decedent dies with a trust established, but the beneficiaries of the trust are dissatisfied with its terms.
  • If pre-existing family disputes are magnified due to the death a decedent and the subsequent distribution of their estate.

Most of the time, proper estate planning can help avoid potential issues in probate. There are always planning strategies to minimize the probate process, however the best way to avoid difficulty in the probate process is to carefully and transparently plan for the future with your family, along with Altman & Associates planning attorneys. Dealing with potential issues now will save you and your family much stress and financial loss later.

Trust and Probation Administration Checklist

In the absence of a Will or Trust, property titled in the decedent’s individual name will be settled under state intestacy laws.  As the overseer of a decedent’s estate, the personal representative or trustee has a duty to settle,  and the duties of a personal representative or trustee may include:

  • Petition the appropriate court for authority to settle the estate
  • Take possession or control of estate assets
  • Determine who inherits estate assets and at what value or percentage
  • Value or appraise assets
  • Prepare an inventory of property of the estate
  • Manage, protect and preserve the estate until distribution or liquidation
  • Notify and pay applicable creditors
  • File the decedent’s final tax return
  • Pay estate taxes, if any
  • Prepare a final accounting
  • Distribute the estate

Probate Beneficiary Rights

Beneficiaries’ Right to Information. During probate, beneficiaries of a decedent’s estate may demand information from the executor. Information a beneficiary is entitled to includes what assets the estate holds, how much debt the estate needs to pay and which assets are being used or sold to settle that debt.

Altman & Associates Will Guide You Through the Probate Process

Altman & Associates will guide you through the probate process…or help you plan to avoid tt altogether.  The probate process often has a bad reputation, and you may have heard “horror stories” from friends or family who have gone through a difficult probate process. But the process need not be difficult for you and your family if you take preemptive action. To discuss how we can assist you with probate, contact us to schedule a consultation. We have offices conveniently located in Columbia, Rockville, D.C. and Northern Virginia.

Avoiding Probate in Virginia & Washington D.C.

If you live in or around the D.C. Beltway, it can often seem like one state with lots of traffic. Of course, the D.C. Metro area is comprised of the State of Maryland, the Commonwealth of Virginia, and the District of Columbia. Each one is a separate and distinct jurisdiction with its own sovereign laws. Driving through one to another, the laws of these jurisdictions may not be immediately noticeable. Yet, there are massive differences when you actually have to deal with the court systems in these respective jurisdictions. Moving from Bethesda to McLean is not very far as the crow flies, but it could make a world of difference in terms of the probate process. Simply put, the probate laws and court rules that apply in Maryland do not apply in D.C. or Virginia. While there are similarities in each jurisdiction, there can be significant differences too. Luckily, there are some universal ways to avoid probate.

As a general legal principle, probate assets are those assets which are solely the property of the decedent at the time of their death. This could include houses, cars, stocks, bank accounts, or anything of value which is owned by the decedent and does not transfer automatically at the time of the decedent’s death. The more probate assets, the larger the probate estate. The larger the probate estate, the longer the probate estate generally takes to work through the courts – not to mention that there are additional expenses associated with larger probate estates.

The probate process can be largely avoided with proper estate planning – no matter what jurisdiction you live in. In particular, you want to avoid the probate process and the possibility of intestate succession in Virginia. As an initial concern, there are potential taxes associated with property which passes as part of the probate process, but there are no taxes on probate estates valued at $15,000.00 or less.

Also, intestate succession in Virginia is fairly complicated. Intestate succession occurs when a decedent dies without a will. The court then follows a certain set of laws which directs the distribution of probate assets through a process called intestacy. In an effort to strengthen the position of surviving spouses facing intestate succession scenarios, Virginia has established a complex formula for determining the “augmented estate” of the decedent – which even includes the value of certain property transfers made during the life of the decedent. The surviving spouse is then entitled to one-third of the augmented estate (if the decedent left surviving children or grandchildren). Trying to figure out the shares to surviving heirs requires two additional layers of analysis.

Such legal complexities create a financial and emotional situation which most people find undesirable; thus, these individuals want to ensure heirs are not victim of probate. A sound estate plan protects your family after you’re gone. You and your family must work together to avoid probate fees and taxes, and avoid the unbending procedures and frustrations of intestate succession.

If you are in a blended family, imagine the frustration associated with the lack of an estate plan when your second spouse is receiving added value to their surviving spouse share because of a gift which you made to your own child or grandchild, such as for their wedding or college education. Flatly put, these situations can create a toxic family dynamic. But if you had a simple will, a strong trust which holds your significant assets, along with fair, reasonable trust distribution requirements, then your family would save money and focus on celebrating your life and legacy.

In Washington, D.C., the general rules of probate assets apply. However, potential intestate succession is a bit different. If a decedent passes with a surviving spouse but no heirs or parents, then the surviving spouse gets the entire estate. But the rules change if surviving heirs are involved. If the surviving heirs are represented by children of the surviving spouse, then the surviving spouse gets two-thirds of the estate and the heirs get one-third of the estate. However, the surviving spouse only gets one-half of the estate if there are heirs who are not descendants of the surviving spouse.

As usual, the intestate succession and the probate processes provide cold, unbending formulas to address complex family dynamics. Relatively-simple steps can ensure that intestate succession does not happen, and while simultaneously minimizing your probate estate and saving money. Avoiding intestate succession is as simple drafting a proper will. Avoiding probate in general requires more involved steps such as: 1) putting marital assets in the names of both spouses, 2) making sure any beneficiary designation forms on IRAs or insurance policies are current, 3) drafting trust documents – especially if you are widowed or single, 4) placing your significant assets in the name of your trust, and 5) making sure to amend your will and trust documents to ensure that they work together and reflect significant changes in your life. Particularly in Virginia, you should also ensure that a surviving spouse is provided for under any estate plan. Otherwise, there could be a probing, complicated probate process to determine what the surviving spouses’ share of the estate might be.

You can streamline or functionally eliminate the probate process by contacting a skilled estate planning attorney for guidance. The Maryland estate planning attorneys at Altman & Associates serve clients around the D.C. Beltway – including Virginia and Washington, D.C. They are experienced in providing strategies to save you and your family money and frustration. For reliable estate planning guidance, contact the Maryland estate planning attorneys at Altman & Associates by phone at (301) 468-3220 or online to schedule a consultation. Office locations in Columbia and Rockville.