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As an estate beneficiary, how do I stay informed of what is happening in the probate case?

You will automatically get notices of certain petitions filed, including the petition for appointment of the executor and the final petition when it is time for the estate to be closed and distributed.

If the executor wants to sell real property, you should also get a Notice of Proposed Action. If you want to get copies of everything filed in the probate court concerning the estate, file a Request for Special Notice. There is no fee to file this document.

You can contact the executor directly if you have any questions. You can also contact the attorney for the estate. But, keep in mind the attorney works for the executor and not the heirs.

If you have concerns about the way the executor is handling the estate, talk to a lawyer.

If a Will is lost or can’t be found, the specific facts and circumstances and state law will determine what happens. (Likely places to find the will) For instance, if the Will is missing because the decedent intentionally revoked it, an earlier Will or the laws on intestate succession would determine who gets the decedent’s estate.

Or, if a Will is missing because it was stored in a bank vault destroyed in a fire, the probate court may accept a photocopy of the Will (or the lawyer’s draft or computer file), if there is evidence that the decedent properly signed the original.

Part of the probate process is to notify creditors of the death. Notice requirements vary. In some cases, you must provide direct notice. In others, you must publish a notice in a newspaper in the city where the decedent lived. Creditors must file a claim with the court for the amounts due within a fixed period of time. If the executor approves the claim, the bill is paid out of the estate. If the executor rejects the claim, the creditor must sue for payment. If there is not enough money to pay all debts, state law determines who gets paid first. The personal representative most likely will sell property to pay approved creditor claims.

How are taxes handled in probate?

For federal and state tax purposes, death means two things:   

• It marks the date of the close of the decedent’s last tax year for filing an income tax return, and
• It establishes a new, separate entity for tax purposes, the “estate.”

For federal taxes, you may have to fill out and file one or more of the following forms. (It depends on the decedent’s income, the size of the estate, and the income of the estate):  

• Final Form 1040 Federal Income Tax return (the decedent’s personal income tax return)
• Form 1041 Federal Fiduciary Income Tax returns for the estate
• Form 709 Federal Gift Tax return(s)

The executor must file any needed state income tax return, state fiduciary income tax returns during the probate period, estate tax and gift tax returns.

There may be other taxes, too, like local real estate and personal property taxes, business taxes, and any special state taxes.

The executor must also check for taxes owed for years prior to the decedent’s death.
You may need a lawyer to help you understand the information.

Who is in charge of the probate process?

If there is a Will, the person named as executor will usually be appointed as the personal representative – this means s/he is responsible for managing the estate and following probate rules and procedures. probate forms

The executor has no authority to act as personal representative until s/he is appointed by the court and formal “Letters Testamentary or Administration” are issued by the Court Clerk.

If there is no Will, or if the Will doesn’t’t name an executor, or the person named as executor in the Will is unable to be executor or does not want to be executor, the probate court appoints someone called an administrator to handle the process. The Court usually chooses the closest living relative, or a person who will inherit some portion of the decedent’s assets.

 Impact of Loss: The Grieving Process
When a loved one is dying or dies, there is a grieving process. Recovery is a slow and emotionally painful one. The grieving process can be less painful if you try to understand that loss and grief is a natural part of life. Try to believe in yourself.  Believe that you can cope with tragic happenings. Let your experience be a personal growth process that will help you to deal with future stressful events.

 The grieving process usually consists of the following stages. Note that not everyone goes through all these stages.

Denial and Shock
At first, it may be difficult for you to accept death of a loved. As a result you will deny the reality of death. However, this denial will gradually diminish as you begin to express and share your feelings about death and dying with other family member friends.

Anger
During this stage the most common question asked is “why me? “. You are angry at what you perceive to be the unfairness of death and you may project and displace your anger unto others. When given some social support and respect, you will eventually become less angry and able to move into the next stage of grieving.

Bargaining
Many grieving individuals try to bargain with God. They probably try to bargain and offer to give up an enjoyable part of their lives in exchange for the return of health or the lost person.

Guilt
You may find yourself feeling guilty for things you did or didn’t do prior to the loss.   Accept your humanness.    You accepted the humanness of the person who died.   They would want you to do the same for you.   Sometimes there can be indignities that your loved one went through.   When you have a harsh flashback consider the huge challenge they faced and the courage they displayed.  

Depression
You have experienced a great loss. Mood fluctuations and feelings of isolation and withdrawal may follow. It takes time to become socially involved in what’s going on around you.

Please note that encouragement and reassurance to the bereaved may or may not be helpful in this stage.

Loneliness
As you go through changes in your social life because of the loss, you may feel lonely and afraid. The more you are able to reach out to others and make new friends, the more this feeling lessens.

Acceptance
Acceptance does not mean happiness. Instead you accept and deal with the reality of the situation.

Hope
Eventually you will reach a point where remembering will be less painful and you can begin to look ahead to the future with hope, as your loved one would want you to.

Ways to Cope with Death and Dying

• Discuss feelings such as loneliness, anger, and sadness openly and honestly with family and friends.
• Maintain hope.
• If your religious convictions are important to you, talk to a member of the clergy about your beliefs and feelings.
• Join a support group.   
• Take good care of yourself. Eat well-balanced meals. Get moderate exercise and plenty of rest.
• Be patient with yourself. It takes time to heal. Some days will be better than others.

When a family has suffered the loss of a loved one and is going through grief and stress, they’re faced with a lot of hard decisions – at a time when they’re least able to make them.

That’s why an attorney is an indispensable asset. Nowhere is this more apparent than during estate settlement and probate proceedings. Probate laws are complex and virtually no individual (other than a probate attorney) has adequate training in such an arcane and complex area.

When a person dies their family carries a heavy burden of grief and bereavement, a circumstance that no-one is ever really prepared for. Compounding their anxiety is the onerous task of properly settling the estate. A qualified probate attorney can ease the tension in this difficult situation.

Why Hire a Probate Attorney?

Unfortunately, the law waits for no one, and a decedent’s estate must be settled in a timely manner. The responsibility of who will settle the estate is determined by the Last Will and Testament of the decedent.

The person named in the will to complete the task is called the executor of the estate. Through the probate proceeding (which is the process of proving the validity of the will) the court appoints the executor to be the personal representative of the estate. Hiring a qualified probate attorney should be one of the estate’s first and top priorities.

If a person dies without a valid will, the decedent is deemed to die “intestate”. Under this process the division of estate property is determined by state statutes. Family member estate allocations are a function of the intestacy laws under the jurisdiction of the state that the decedent was domiciled.

For this reason, it is important to hire a probate attorney located in the decedent’s home state. Assets titled in a trust’s name usually avoid the probate process entirely, thus providing greater privacy and lower administrative costs. This also allows the the probate attorney to distribute assets more quickly.

How a Probate Attorney Can Help

As you might expect, every estate is different and has unique assets to be valued, sold or distributed to beneficiaries. But before an executor takes any action they should consult with the probate attorney, to prevent a mistake that may be difficult to reverse.

The settlement of an estate can take anywhere from 9 months to several years to be fully paid out and closed, but the probate attorney will be your best guide in this area.

One of the greatest advantages of dealing with an experienced probate attorney is their ability to protect the executor from legal and financial liability. The repercussions of inadvertently mishandling estate affairs can be severe. The executor or personal representative has inherent fiduciary duties of loyalty to the estate. Fiduciary duties are one of the first topics that all executors should discuss with a probate attorney.

Sometimes an executor’s “good intentions” can lead to big problems. For example, allowing a friend or family member to use the decedent’s property or car may expose the estate to liability.

Out of generosity, sympathy or pressure from a family member the executor may over-distribute assets to a beneficiary and then have inadequate funds to pay the remaining beneficiaries their share or to satisfy the estates final expenses.

When this happens, the executor may have to make up the difference with their personal funds to pay any unpaid expenses.

An experienced probate attorney can help prevent this.

Hire a Probate Attorney Early

If an executor tries to navigate these waters alone, without a probate attorney, it may place them in legal jeopardy and even financial jeopardy. Estate settlement is no places for do-it-yourself approach.

The adverse consequences, legally, financially, and emotionally, are simply too high. Talk to a probate attorney as early in the process as possible.

Along with saving you time and money, he or she may save you something much more important… your peace of mind