Author: Charles F. Fuller
When a person dies, many questions arise. An important question is what is to be done with their assets and debts? Unless those assets are jointly titled or have been previously placed in a trust, the laws of most jurisdictions, including Maryland, Virginia and the District of Columbia require that the disposition of assets and liabilities be administered through the courts. The task of gathering information, sorting out assets and liabilities and reporting that information to the court is generally known as “probate.” If handled properly, probate does not need to be expensive or complex, but without proper legal guidance, it can be a daunting task.
Prior to beginning the probate process, it is important to determine whether or not the decedent died with or without a will. If a person dies with a will, the person is said to have died “testate”, and after payment of all debts, funeral expenses and taxes, assets are distributed in accordance with the terms of the person’s will. When a person dies without a will, they are said to have died “intestate.” An intestate estate is also administered in accordance with the local laws, but the distribution of the remaining estate assets are made in accordance with statutes enacted by the state legislature. If you wish to determine how your estate is to be distributed upon your death, then you should have a will or other testamentary document, such as a trust, drafted during your lifetime. As noted in our article regarding trusts, a trust, properly drafted and funded, can be used to avoid probate.
In order to begin the probate process, a petition for probate must be filed with the local court or Register of Wills. If the decedent died with a will, that petition is usually filed by the person named as the personal representative under the will. If the person died without a will, a family member usually files the petition for probate. The priority of the family member allowed to petition the court to open an intestate estate is governed by statute.
Once a petition for probate is filed, the Register of Wills issues letters of administration to the person appointed as the personal representative. Those letters of administration advise third parties that the individual has been legally appointed by the court to act on behalf of the estate. Once a personal representative is appointed, that person is charged with gathering the assets of the decedent, paying the decedent’s lawful debts, administrative expenses of the estate, and taxes of the decedent, and then making distribution of the remaining assets. All of these tasks are overseen by the court in accordance with established procedures to insure proper administration of the estate. The local court has established deadlines that must be met so that the estate will be administered timely.
To a person unfamiliar with probate, the probate process can be both tedious and exacting, but with proper guidance, the probate process can be streamlined. Beyond obtaining information regarding assets and liabilities, important decisions need to be made in terms of valuation of assets and potential tax effects upon the estate and the estate beneficiaries. Often, these demands go beyond the knowledge of most individuals, and it is a good idea to retain counsel to assist the personal representative in the administration of the estate. The attorneys at McChesney & Dale, P.C., have been called upon to represent personal representatives, heirs and beneficiaries in numerous probate matters. To keep expenses to a minimum, much of the paperwork and communication are handled by knowledgeable and experienced paralegals under the supervision of the estate attorney. We can assist in managing probate estates, advising on tax matters and estate and trust issues and representing clients with matters before the IRS, local taxing authorities and the local probate courts.