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Probating a Will?

Old 02-06-2010, 10:34 PM
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Default Probating a Will?

My 93yr.-old aunt, whom I've had POA for since last July, passed away last Tuesday and was put to rest Friday. She was a wonderful woman, my Mom's only surviving sister, and had a long and rewarding life.

I am also the Executor of her estate, and will be contacting the Circuit Court in the county in which she resided sometime next week. I know that I have to make an appointment with them and will have to bring certain documents to start the probate process. There IS a lawyer (her lawyer) that I can contact for questions on the process, if needed. There is also an accountant (her's) I can contact for questions along the way. I have a lot of faith in BOTH of these folks, and am certainly willing to pay for their services, when needed. I have all of the original legal documents, such as the Will, and I know the POA is no longer applicable, and reverts to the Executor mode.

My question is to those that may have already gone through or experienced this process. I have never done this before. Maybe I'm asking a little too early, since the Circuit Court will probably give me some guidance and specific "steps" for doing this?

Are there any "red flags", pitfalls, stumbling blocks, etc. that you have experienced along the way that I should be aware of? I know that the "probate" process may differ widely, from state to state, as well as taxes, etc.. My aunt resided here, in VA.

Again, I will probably find out most of what I need to know at the Court, but felt I would ask for some "experience" of the THT members so I can be aware of some potential problem areas.

I know NOTHING about estate taxes and other taxes related to probation of the Will?

If there are things that you would rather PM to me, that would certainly be fine.

Thanks for any input you feel is important - I feel my REAL work is just beginning!

Regards,
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Old 02-07-2010, 02:39 AM
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Sorry to hear for your lose Bruce and your mother's lose. May the Lord be with you and the family in these times.
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Old 02-07-2010, 03:09 AM
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Why not let the lawyer do it? It is a trivial process (for them and the court). In my case the court issued some documents stating I was the authorized executor. The legal cost was fairly minimal, and the estate is paying anyway. Otherwise it is just like running a business. Open a bank acct, collect from creditors, pay the bills. Keep good records. You also probably need to "advertise" the death to inform possible claimants. The lawyer did this for me, they know what places to put it and what it should say.

In my state the executor is entitled to compensation from the estate, though I declined as me and my siblings were the only heirs.For doing the filing, representing the estate, and telling me what all to do, I think we paid maybe $1-2K to the lawyer.

If there are real estate transfers or other complex stuff involved that would normally require a lawyer anyway, then that will add to it, but again the estate should pay for it.
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Old 02-07-2010, 08:30 PM
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Originally Posted by Garett View Post
Sorry to hear for your lose Bruce and your mother's lose. May the Lord be with you and the family in these times.
Thank you, Garett - "Ginny" was the family matriarch, always kept in touch everyone, and really enjoyed sharing wonderful tales of the origins and history of the early years. Never had children and always referred to me as "the son she never had".

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Old 02-07-2010, 08:45 PM
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Originally Posted by DrJim View Post
Why not let the lawyer do it? It is a trivial process (for them and the court). In my case the court issued some documents stating I was the authorized executor. The legal cost was fairly minimal, and the estate is paying anyway. Otherwise it is just like running a business. Open a bank acct, collect from creditors, pay the bills. Keep good records. You also probably need to "advertise" the death to inform possible claimants. The lawyer did this for me, they know what places to put it and what it should say.

In my state the executor is entitled to compensation from the estate, though I declined as me and my siblings were the only heirs.For doing the filing, representing the estate, and telling me what all to do, I think we paid maybe $1-2K to the lawyer.

If there are real estate transfers or other complex stuff involved that would normally require a lawyer anyway, then that will add to it, but again the estate should pay for it.
Jim,

Thanks for the info! I had forgotten about the probable need to advertise about the death/estate. I DO see the need for that, through the lawyer!

Compensation for the Executor is also valid in VA - a % of the estate. There are siblings and non-siblings involved in the Will. One interesting aspect of that is whether I will have to assemble ALL of those "named" for the reading of the Will, or, if I can notify them - individually - by mail/phone to advise? I may have to read it in the presence of ALL - as a "legality"? The lawyer can tell me that.

There is no "real estate" involved - she sold her only property a few years ago. I will probably be asked questions/provide info about that transaction, though, and where the funds went, and "capital gains" to deal with.

I will be contacting the lawyer this week to see what advice he gives concerning my contacting the Circuit Court, and other advice he has concerning HIS part in the probate, if/when I may need it.

Thanks, again - I have NO IDEA how long "probate" will take? I'm sure it varies - quite a bit - with each individual estate.

Regards,
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Old 02-08-2010, 06:19 AM
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Estate could be open several months to a year or more. Transfers and stuff occur at your leisure to some extent. Once everything is done, you (the lawyer) go back to the courthouse and tell them (ask them?) to close it out. Done. I dont know if you need to have a "reading of the will" or if you just inform them and mail heirs a copy maybe.

For handling bank stuff, insurance etc, youll need death certificates and the document provided by the court showing that you are executor. They are called "letters of administration" here in MD as I recall, or something like that.
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Old 02-08-2010, 06:55 AM
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I can't speak for VA, but in Florida, for a simple will, without real estate being involved, you can easliy do it yourself and don't need a lawyer. You go to the court house probabte department and tell them you want to open the estate for probate and they give you a list of things that need to be done and the time line. You have to put a notice in the paper, once that is run, people have 6 weeks to make their claim against the estate, after the 6 weeks has elapsed, you go in front of the judge again and they will set a hearing date.At the hearing, if it is not contested, the judge will have the clerk issues orders to the claimants to receive their share. If it is a civil family where no one is contesting the will, it only cost you a couple hundred in court fees and is relatively painless. Even if there is real state involved, it can be handled without an attorney if the heirs ar civil, such as a house that is to be split between a brother and sister. The judge will order the proceeds of the sale to be paid to the court and then the court will distribute the proceeds. If the will is being contested, then an attorney will be involved and they usually end up getting more in fees than a small estate has value.
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Old 02-08-2010, 07:13 AM
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Bruce, here in Wyoming, and I guess in a lot of other states, there is a process called small probate for small estates that doesn't have to involve a lawyer. Here in Wyoming, the size of the estate can be up to $150,000 and the heirs can do the probate without a lawyer. Sounds like your aunt may not have had a large estate, so you might ask the court if a "small probate" would be possible. If so, they can give you all the steps to take. It would include an ad for creditors.
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Old 02-08-2010, 07:22 AM
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First, I'm sorry for your loss. Those special aunts are like grandmas.
Secondly, the laws there are probably different from what I experienced here in La.. There is almost no inheretance tax anymore, at least here. What that means is that you can value the assets such as real property and almost anything else except cash, cds, stocks, etc. at any value within reason. The benefit there is not now, but in the future. If there is a house valued at around 100k and you show it at that on the final tax return and sell it later for 150k then you pay long term capital gains on the 50k. If you value it at 200k now and later sell it for 150k you can take a 50k capital loss on the sale. I say this not to be crooked, but to protect yourself or other heirs from future unfair taxation. I think it is absolutely wrong to tax inflation or appreciation. You may not be able to do this in Va. and your attorney may not know about it (mine didn't). My brother came up with it and the attorney checked it out. It was too late for us because we had already done the return. Check it out in your area. It might save you a ton of money down the road.
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Old 02-08-2010, 07:21 PM
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The size of the estate will determine many of your requirements. The court should have pertinent documentation.
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Old 02-10-2010, 12:14 AM
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Thank you ALL for the comments and info! It caused me to think about some questions for the lawyer.

I contacted the lawyer yesterday and he said we SHOULD chat beFORE I make the appointment to go to the Circuit Court to start the probate. I am seeing him Friday morning.

Talked to a neighbor today that had to probate a Will a few years ago and he also gave me a little info on the process. He said he thinks there is about a $1M "exemption" on estate taxes from the Feds now? Also, sounds like that because my aunt had a Will, and currently owned no real estate, it will make it easier, and quicker! Ran into the real estate agent that sold my aunt's condo (her last "real estate") and she said the current exemption on capital gains on real estate is $500K - that's good! Neighbor said he thinks it's a one year "wait" for distribution, to allow time for claims/liens, if any, to be filed.

Neighbor even mentioned that there are "estate bonds" that can be purchased that will "guarantee" an amount from the estate, based on provided info? But he said they are expensive, and, if the "net" from the estate is LESS than the bond, the estate (or an heir?) will have to pay BACK the difference?

Interesting stuff, but I will verify and LISTEN to what the LAWYER has to say!

Will post anything I find out that may help someone else who may have to go through the process - even though it differs from state to state.

Thanks again!
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Old 02-10-2010, 07:16 AM
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Don't take tax advice from a real estate agent. The exemption she is talking about is $250,000 gain for a single person when they sell their residence, not just real estate. As far as the $1,000,000 exemption from Federal estate tax, that is somewhat incorrect, at the moment. Technically, the Federal estate tax was repealed for 2010 so there is no Federal estate tax for persons dying in 2010, currently. However, Congress is working on re-instituting the estate tax back to 1/1/10 at some level. Seems they think they have other pressing matters to take care of first, like the economy, homeland security, health care, two wars and not being able to get out of their own way.
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Old 02-10-2010, 07:21 PM
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Originally Posted by JALICHTY View Post
Don't take tax advice from a real estate agent. The exemption she is talking about is $250,000 gain for a single person when they sell their residence, not just real estate. As far as the $1,000,000 exemption from Federal estate tax, that is somewhat incorrect, at the moment. Technically, the Federal estate tax was repealed for 2010 so there is no Federal estate tax for persons dying in 2010, currently. However, Congress is working on re-instituting the estate tax back to 1/1/10 at some level. Seems they think they have other pressing matters to take care of first, like the economy, homeland security, health care, two wars and not being able to get out of their own way.
My aunt was "single" (widowed) when she sold her last residence. Well, whether it's $250K or $500K, doesn't much matter - the residence sold for something like $150K or so. Weird that the agent said that - she's the one that SOLD my aunt's place and remembered me from the "walk-through"? I'll verify with the RIGHT people on that!

I was talking to her accountant/investment guy this afternoon and he was telling me about the "repeal" of the capital gains tax, effective last month, and that it is suppose to be put back in place (or voted on?) before Jan. '11. He said to check with the lawyer on what to do about the Fed estate taxes, based on that "repeal" - seems to be a LOT of questions on exactly HOW it is to be handled CURRENTLY?

What REALLY bothers me is that I must get a "certification" from the Court stating that I am, in fact, the "executor" - seems ridiculous since I have the ORIGINAL document (Will), notorized, stamped, and witnessed, and was able to deposit, withdraw, write checks, pay bills, etc., just by presenting that document?

Friday with the lawyer should answer a LOT of questions!

Thanks for the info!

Regards,
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