WE HELP YOU MAKE IT AS EASY AS POSSIBLE.
Whether you are a newly appointed executor or personal representative or an attorney that has been retained by the estate or appointed by the court, it's an absolute certainty that there will be difficult moments ahead.
First, there are usually the obvious emotional aspects of the situation. Often, the person chosen as the executor or personal representative to deal with the deceased person's probate issues is also someone who is still grieving over the loss of that loved one or friend. Then, that same person is faced with the added challenge of having to make many decisions in areas in which they have no previous experience.
These decisions must also be made with the added pressure of knowing that whatever the results of these decisions are, they will likely be very closely scrutinized and (all too frequently) second-guessed by family and/or friends. Couple this with the legitimate concern that everything must be handled "legally and properly" as well as the horror stories about probates that have gone badly and the pressure and stress really begins to multiply.
Even if there is no real estate in the matters to be disposed of by the personal representative or executor, this is a big undertaking when Real Estate is involved, the load is compounded.
We help you determine specifically what the most critical objective or objectives are in regard to real estate that's involved in probate.
Do you need to dispose of the property as quickly as possible?
If so, we can provide immediate cash buyers from our list of qualified investors. Often, this is vital to allow a surviving spouse to move into a more suitable location, handle medical or other bills or simply get asset funds into the hands of the heirs quickly. Sometimes, funds can even be advanced prior to closing. Of course, timelines are frequently subject to the courts and filing time lines which are beyond our control, but our efforts minimize these delays whenever possible.
Do you need to maximize the selling potential to provide the greatest cash benefit to the heirs/stakeholders?
When maximum revenue is the focus, we will make certain the property is not only listed properly, but marketed aggressively and intelligently to assure maximum exposure. Will make sure you know exactly what the property is worth if you are willing to wait for the right buyer and will help you determine any possible repairs that might add more to the final selling price than their cost. Be aware that all too often, ill informed sellers spend far too much on repairs that do not even cover their cost in the final sale price. This is where our experience, preparation and savvy marketing skills come into play.
What if you are the attorney?
We work especially well in these situations. Typically the attorney of record has one of two rolls. They are either appointed to the task by the court or selected by the family or executor / personal adviser. If you have been court appointed, then your role is usually focused strictly on the legal issues regarding any transactions and dispersal of assets. However, if you are retained by the family or the executor/personal representative, your role usually extends to include a more advisory capacity as well. In either case we will at all times keep you well informed about any aspect of the process in which we are involved – especially when it comes to fielding others on the real estate.
In some cases, the family or executor/personal adviser will want all aspects of the probate to be handled completely by the attorney. In these cases, we'll work with you as the client regarding the real estate, just as we would with the executor/personal adviser.
We have focused our efforts on working in this unique area of real estate because we feel it allows us to not only perform a much needed service to people in times of great stress, but also because it is a place where we can differentiate our level of expertise from others who are not as focused in this niche. We have taken the time and made the investments to properly prepare to assist you. If you would like some general information, please review our list of frequently asked probate questions. We are ready to start working with you today and ease any unnecessary burdens quickly.
For probate transactions we have a proven 6 step system that helps you market and sell the property, handle any personal property in need of sale and removal, make necessary repairs if needed, and bring you a cash offer in 24 hours.
We are Blake and Diana Roberts and we have been helping customers list and sell real estate for the past 10 years and during that time we have closed hundreds of real estate transactions and have extensive experience in single-family homes, listing and selling properties for banks and mortgage companies, working with investment properties and investors, vacant land, and land development.
We can help with many ways in regards to selling your probate property:
We hold a broker real estate license and a general appraiser license.
Joint tenants (or tenancy) with right of survivorship (JTWROS) is a type of ownership of real property or financial assets in which all joint owners have equal portions of ownership that are immediately re-allocated to remaining owners if one or more owner dies.
This term refers to a person who has died and left a “Last Will and Testament” that specifies their wishes pertaining to the distribution of the assets of their estate following their death. In this case, the estate will be distributed according to the provisions of the will.
This term refers to a person who has died and did not leave a “Last Will and Testament”. In this case, the administration of the estate will be handled by the court of jurisdiction and according to the laws of the state.
A codicil is a document, attachment or rider that is added to an existing will that modifies or supersedes existing provisions or adds new provisions. This is done as an alternative to redrawing the entire will and is often done to change a beneficiary or assign disposition of a particular property or define the rights of a specific beneficiary.
A: While the process can vary from state to state and is often subject to outside factors that can certainly change it, the list below represents a VERY simplified step-by-step description of the process:
A: The duration of the probate process is subject to lots of different variables, but a general rule of thumb is approximately six months. However, you should be aware that it can and frequently does takes far longer. Some of the matters that can delay the completion of the process (among others) can include:
A: There are many reasons for probate, but some of the most important are:
Not necessarily, however, some legal method must be employed to transfer the legal title and ownership of the deceased’s property into the name of the beneficiaries and/or heirs. Many states also allow a some types of property to pass to certain beneficiaries free of probate or via a simplified (express or fast-track) probate procedure.
A: The cost of probate may be set by state law or by practice and custom in your community.
When all the costs are added up – and the costs may include appraisal costs, executor’s fees, court costs, costs for a type of insurance policy known as a “surety bond”, plus legal and accounting fees, probate can easily cost from 3% to 7% of the total estate value, and more. If there is a “Will contest” all bets are off.
A: Possibly. In some states, there are processes often referred to as “simplified procedures” that are used for estates whose value is below certain financial thresholds. The limits can be as small as a few thousand dollars or as much as a hundred thousand dollars. It depends on the court of jurisdiction. This is certainly a matter to consult with an attorney about, but if there is real estate involved or there are debts against the estate, regardless of the size of the estate, the full probate process may be required or advisable.
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A: Typically the person named as the deceased’s Personal Representative (a more formal term is “Executor” or “Executrix”) goes to an attorney experienced in probate matters, who then prepares a “Petition” for the court and takes it, along with the Will, and files it with the probate court. The lawyer for the person seeking to have the Will admitted to probate typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the Will, and give them an opportunity to file an formal objection to admitting the Will to probate. A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. Depending on the state, and sometimes who the named beneficiaries are, how long before the death the Will was signed, whether the Will was prepared by an attorney, who supervised the “execution” of the Will, and/or whether the Will was executed with certain affidavits, it may be necessary to bring in the persons who witnessed the deceased’s signature on the Will. If no objections are received, and everything seems in order, the court approves the petition, appoints the Personal representative, orders that taxes and creditors be paid, and requires the Personal Representative to file reports with the court to assure all the deceased’s property is accounted for and distributed in accordance with the terms and conditions of the Will.
A: The appropriate court in the State and County where the deceased permanently resided at the time of his or her death is usually the court where the probate is processed. A court that handles issues such as these can often be referred to my several different names. For example, in the state of New York, the court that handles probate is called the Surrogate’s Court, while, in the state of California, it is called Superior Court, Probate Division. However, it’s most common for it to be referred to simply as “probate court”.
A: While there is usually no legal requirement to use a probate lawyer, probate is a rather formalistic procedure. One minor omission, one failure to send Great Aunt Maggie a copy of the petition, or a missed deadline, can cause everything to come to a grinding halt or expose everyone to liability. The death of a family member or friend sometimes tends to bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one’s death, such as who gets the iron frying pan and who gets the kettle. Such minor matters or any delays or inconveniences can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus, it generally is a very good idea to “let a lawyer do it”.
A: Usually, the laws of the state in which the deceased was last a permanent resident prevail in regard to governance of probate issues – covering all of the deceased’s personal property, wherever it was located, and all the deceased’s real property located within the state. Therefore, probate almost always filed in the last state where the deceased person lived.
A: If there is a will, the Personal Representative (sometimes referred to as the “executor” or “executrix”) is usually responsible. If there is no will, an “administrator” is appointed by the court as part of the probate proceeding and that person has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures. In many states, the probate court has a considerable amount of control over the activities of the Personal Representative, and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may take place.
A: The main tasks of a Personal Representative are to:
A: Of course not. It is always your option to serve or decline. Even if you agree to serve you can resign later. If you do quit before the completion of probate, you may be required to provide an “accounting” for the period you served. If you decline to serve (or accept and resign later) any alternate named in the will is typically appointed by the court. If no alternate representative is named in the will or the named alternate dies or is unwilling to serve (or, of course, if a person dies without a will, the probate court will appoint someone to serve as the personal representative.
A: It is not a requirement, but usually they are compensated. Certainly all personal expenses they incur in the management and process of settling the estate must be paid for. Typically, a personal representative earns a fee of +/- 2% of the total value of the estate for their work. This can be mandated by the courts or by law in some states and also varies moderately from state to state. Generally, this percentage diminishes as a percentage as the size of the estate increases.
A: An executor or administrator who is derelict in his or her duty is personally liable for damages caused in the administration of the estate.
A: If someone files an objection to the Will or produces another Will, what is known as a “Will contest” has begun. While Will contests are not that rare, and while few people actually win one, they can be extraordinarily costly and create incredible delays.
A: Most of the challenges to invalidate Wills are by potential heirs or beneficiaries who got little or nothing. Questions on the validity of a Will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the Will to probate. The typical objections and unhappiness is not one of them are:
If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the laws of intestacy of the probating state. Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is a must.
A: A “contest” is usually mounted by the filing of the necessary documents with the probate court by an heir, prospective heir or another beneficiary. Each state has different time limits that control the window for filing. To successfully challenge a will, there must be sufficient evidence that the will was not created properly. Sour grapes or being upset that a person didn’t receive what they felt they had coming are not sufficient grounds for contesting a will. Typically, only certain factors are mandated by law to be contestable. These might encompass the incapacity or incompetence of the decedent at the time the will was prepared, fraudulent intent on the part of some parties to the will or undue influence or duress perpetrated on the decedent.
A: If a person dies without a Will (known as dying “intestate”), the probate court appoints a Personal Representative frequently called an “Administrator” to receive all claims against the estate, pay creditors, and then distribute all remaining property in accordance with the laws of the state.
The major difference between dying testate and dying intestate is that without a valid Will an intestate estate is distributed to beneficiaries in accordance with the distribution plan established by state law; a testate estate is distributed in accordance with the instructions provided by the decedent in his/her Will.
A: Missing Wills raise all sorts of interesting legal issues which often turn on the specific facts and circumstances, and the law of the state in which the deceased resided.
The Will may be missing because the deceased intentionally revoked it, in which case, depending on state law, an earlier Will or the state’s rules on intestate succession would determine who gets the deceased’s estate.
Alternatively, the Will may be missing because it can be proven the Will was stored in a bank vault that was destroyed in an explosion and fire. In that case, the probate court may accept a photocopy of the Will (or the lawyer’s draft or computer file), together with evidence that the deceased duly signed the original.
A: The first place to check is with the probate court in the County of the State where the deceased lived. In almost every case the Will, if filed, will be available to the public.
Anyone can get to see it, and for a modest fee, obtain a copy. If you are far away, a local lawyer or legal service bureau often can arrange to do a search and get a copy for you, at a relatively modest fee.
The fact that a person died — even if he or she “owned” substantial assets — does not mean that he or she actually had a Will, or that the Will was duly filed with the Court. In fact, if the deceased held property exclusively through a Living Trust or a joint ownership arrangement, there may not have been a need to file a Will, because the Trust did not “die” with the individual. Also, with certain forms of joint ownership, the property usually passes to the other joint owners automatically.
A: One approach to reduce or eliminate the need for probate is through the use of a Living Trust that holds legal title to some or all of your property at the time of your death. The Trust is a legal entity which survives you after your death.
A: Creditors are notified of the death as part of the probate process. This notification process can vary from state-to-state and can range from a letter to each creditor to a blanket notice to all creditors published in the local newspaper. Once this filing or notification has occurred, creditors have a fixed period of time (defined by the court of jurisdiction) to to file any claims against the estate either by notifying the personal representative or, in some states, notifying the probate court. If the claim is approved by the personal representative, the bill is usually paid out of the estate. However, if the personal representative rejects a claim is, the creditor must sue the estate for payment.
If the estate does not have sufficient funds to pay the lawful debts to the creditors, the determination of who receives payment and in what order is usually a matter of law. Also, the personal representative may be required to sell some or all of the decedent’s property to satisfy the claims of the creditors.
A: Generally not. Just as you “can’t take it with you” you just can’t make others responsible for your general debts, at least without their consent. (Otherwise a person could run up lots of debts, name his worst enemy as his beneficiary, and saddle his enemy with those debts at his or her death.)
Unless the deceased had gifted away his or her assets to someone shortly before dying, or otherwise acted in concert with them to defraud his or her creditors, beneficiaries should not have any liability to the deceased’s creditors just because they are beneficiaries. Of course, the Estate may not have anything left for them, but the beneficiaries would not be in the hole.
Of course, if the children or beneficiaries took any property or benefits from the deceased or the estate or had assumed liability for care given the deceased, or guaranteed payment, they could be held liable for some or all of the deceased’s debts separately, not because they are relatives or beneficiaries.
A: For federal and state tax purposes, death triggers two events:
For Federal tax purposes, it may be necessary to complete and file one or more of the following, depending on the decedent’s income, the size of the estate, and the income of the estate:
For state purposes, an executor must file the appropriate state income tax return (assuming the decedent was required to do so while living) and any state income tax returns during the probate period, plus possible estate tax, inheritance tax and gift tax returns. (In many states, gift, estate and inheritance taxes have been eliminated for most small and medium-sized estates.) The requirements for filing and payment vary widely from state-to-state. Other taxes require the attention of the personal representative in the probate process, such as local real estate and personal property taxes, business taxes, and any special state taxes.
The Personal Representative should also be alert to the possibility of issues arising from tax years prior to the decedent’s death.
A: Of course. The only real requirement is that the person making the will be competent to make the change. In the movies, you have probably heard this stated as “being of sound mind”. A will can be modified with an addendum, often referred to as a codicil or replaced by a completely new will. Sometimes the law can modify the effect of a will. This is especially common in cases of divorce which usually terminates an ex-spouse’s rights unless a specify provision keeps them in place. However, separation doesn’t terminate a spouse’s rights. This just one example, but a probate attorney should always be up to date on prevailing legal issues in your state.
A: Often they are, but a court is not bound by these provisions and might overrule them if there was a specific reason to do so or a justifiable challenge to the guardianship was offered by another family member or interested party. It is also possible that a different guardian would be appointed if a designated guardian was deemed to be incompetent to adequately serve in such a role or is judged to be an otherwise inappropriate choice, based on moral or other character issues. In all such cases, the decision of the judge will determine the final guardianship, but the wishes of the person making the will always be given first consideration. It is important to add this provision to a will since it is possibly the only way your wishes in this matters would ever become known.
A: In general, the answer is yes, but if (for example) you indicated that all your effects should be buried in a big hole in the back of your property, that request might be deemed inappropriate by the courts and denied. A judge can void all or part of a will. You cannot change the effects of law just by stating your wishes in your will. For example, you may not suspend or terminate any legal rights or claims that a spouse, child or business relationship may rightfully have against an estate just by stating that in a will. They will remain in effect.
A: You could do so by appointing co-representatives or a secondary representative. However, this could not only cause problems during probate if there is a disagreement between the representatives. Normally, one representative is all that is needed and appointing more than one should only be done where there is a specify reason to do so. A possible example might be where one person handled only the real estate aspects of probate and the other one was designated to handle all other issues. Appointing co-representatives just to protect someone’s “feelings” is almost always a bad decision and should be avoided. Often, a frank discussion with the people involved can eliminate any issues of concern and allow one person to take on the challenging role or representative without the added challenges of co-representation.
A: It depends on the laws of the state, but usually isn’t an absolute requirement, but it is usually easier – especially in regard to larger estates and real estate.
A: Joint tenancy with right of survivorship (FTWROS) is a common legal method of defining property ownership when shared with another person, but it doesn’t replace a will. Typical, this “survivor” is a spouse, but can apply to other relationships. If one of the owners dies, the other becomes the sole owner of the property. This means that the real estate isn’t part of the decedent’s estate, and therefore, is not subject to probate. However, all parties should be aware of possible tax liability implications (if any) of such survivorship.
A: A state law could possibly require this, but generally this is a movie scenario and not done in real life. Usually, the personal representative of the estate provides notice of probate to all interested parties and they can obtain a copy of the will from the probate court if desired. Often, enough copies of the will are made and distributed to the affected parties by the representative.
A: If this is allowable in the state in question, the benefit of doing so is that the list can be changed from time to time as opposed to changing or adding codicils to the will.
A: While each state may impose additional or alternate requirements, in general, a valid will must be hand-written or printed and signed by the person who has created it. This person is the “testator” and a will is usually witnessed by two (or more) persons who must normally be “disinterested” parties – meaning they are not named as beneficiaries in the will. Witnesses must also be of “sound mind” (mentally competent). The required number of witnesses may differ by state. The testator needs to have reached the age of “majority” (18 in most states) and also be of “sound mind” (mentally competent) when the will is executed. A married person who has not yet reached the age of majority is usually adjudged legally capable of executing a will. Normally, it is not a technical requirement for a will to be notarized, but it certainly is helpful to add strength to the will. Fully “holographic” (totally handwritten) wills are still recognized as valid in many states without being witnessed. Such a will must be in the normal and provable handwriting of and signed by the testator. As always, state law might impose other conditions on a holographic will.
A: The laws of each state usually provide a “default will” for any person who dies without a will, which is referred to as “intestate”. The spouse and children of the decedent will usually be given the property of the deceased. If no spouse and no children exist, then the decedent’s parents will usually receive the property. Following them if they are not alive are other siblings, grandparents, and children of the grandparents. If no close direct family can be found, the property will eventually revert to the state. Just be aware that in all cases, any creditors (including taxing entities such as the state, local and federal government) will be allowed to extract what they are owed from the estate prior to its final disposition and this could necessitate the sale of property to provide funding for these liabilities.
A: The simple answer is … immediately. Usually, death comes as a surprise to us all and no one is aware of their impending demise. Making a will represents doing the “right thing” today for those you love and you should occasionally review your will to make sure it continues to represent your final wishes. If not – modify it. Also, almost everyone who dies owns some sort of personal property, therefore, everyone needs to provide their heirs with a will to prevent confusion or strife after their death. While state law will decide what happens to property in the estate of a person who dies intestate, the default plan normally distributes property to relatives. Therefore, a girlfriend, boyfriend, partner or fiance’ will have no provision made for them by law unless provide by a valid will.
A: If you do not do it yourself (which is perfectly acceptable) only an attorney can legally draft a will for you. Be aware that personally drafted wills are often incomplete and therefore, some or all of such will can be held to be invalid under state laws. While there are certainly kits available from multiple resources for creating a will, they are often not state-specific. If your will fails to follow state law in creation areas, it could be held to be invalid.