Probate Estate Administration

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PROBATE ESTATE ADMINISTRATION

Probate estate administration is a lengthy and detailed process that usually occurs at an emotionally difficult time.   The process usually lasts for about two years from the initial probate filing to the final payment from the estate.  If a personal representative has concerns that the probate estate might be insolvent (which means the debts exceed the assets), it is essential to consult with an attorney as soon as possible.

The Law Office of Maria T. Patente PLLC represents clients in all aspects of probate estate administration. Whether you are the spouse, executor, personal representative, or a beneficiary, you will benefit from knowledgeable legal advice about your rights or obligations during probate. Call The Law Office of Maria T. Patente for an attorney to protect your rights, prosperity, and peace of mind throughout probate estate administration.

Topics presented below provide a basic overview of issues that frequently arise after the death of a family member and before or during probate. However, many other complications may occur. Call for an initial individualized consultation and to learn more about probate and legal services during this difficult time.

Immediately After Death and Before Probate

The loss of an important person often triggers emotional confusion as well as confusion about ordinary daily activities. Some immediate practical considerations that the executor or family members should investigate shortly after a death in the family include:

  • Taking care of pets;
  • Verifying that home insurance premiums are paid;
  • Obtaining or renewing home security services;
  • Paying utility bills;
  • Locating the original Last Will and Testament;
  • Verifying accuracy of the death certificate;
  • Ordering numerous copies of the death certificate;
  • Gaining access to a bank safety deposit box

Deciding When and Whether to begin Probate Estate Administration

You may have questions about when to probate or whether to probate at all.   Statutes of Limitations exist for several legal rights for the spouse and minor children after a person dies. If these rights are not properly asserted in time, then the rights are forever forfeited.   For example,  if the estate is insolvent, the spouse and minor children should assert rights to take certain assets free and clear from creditors. However, they must act before the statute of limitations for these exemption expires. 

Probate Estate Administration May Not Be Necessary.

Under some circumstances, a will does not need to be probated.  Similarly, probate may be unnecessary for an intestate estate. In contrast, fraudulently concealing a will is a felony in Virginia.

Sometimes it is best to initiate probate but have no one qualify as the administrator. This decision turns on the unique circumstances of a specific case. Sound advice prior to starting probate initiation can save time and money and prevent legal complications throughout a probate estate administration.

Alternatives to Probate Estate Administration

 The Law Office of Maria T Patente PLLC provides counseling on alternatives to probate which expedite probate estate administration. Alternatives to probate usually save both time and money. 

Alternatives to probate may apply when the testator died intestate with a small amount of assets or when most assets passed through non-probate transfers, such as beneficiary designations.  Probate alternatives depend upon the amount of assets, the nature of the assets, and how they are titled.  If probate assets are under $50,000, an alternative to probate is usually the fastest and cheapest way to administer the estate.

Qualifying as an Estate Administrator

Whether a person died testate (with a will) or intestate (without a will) the probate process ordinarily requires an estate administrator. The Virginia Code specifies who may qualify and how to qualify. Before attempting to qualify, however,  it makes sense to determine if you meet the requirements and if you have the time and skills necessary. The fiduciary responsibilities of estate administrator can become a full-time job for someone new to the tasks.

Ordinarily, administrators earn compensation for their work if it is completed correctly and billed correctly. However, they can also incur liability. Creditors, heirs, and beneficiaries have rights to sue an estate administrator for errors and omissions that he or she commits in the probate estate administration. Furthermore, once qualified, the estate administrator has both the right and the duty to hire qualified counsel for certain tasks. Call the Law Office of Maria Patente PLLC to learn about qualifying as an administrator and how to successfully accomplish the job.

Fiduciary Representation

 An Estate Administrator has a duty to act competently, which often requires hiring professionals to complete legal, accounting, and tax work. If aggrieved beneficiaries file claims against the administrator, the administrator will need legal counsel to defend against the allegations. Hiring counsel at the beginning of the probate administration reduces the likelihood of mistakes and may prevent lawsuits from arising.

Preventing Liability

Estate administrators frequently must initiate several legal proceedings with the Commissioner of Accounts (“COA”) or Circuit Court for their own protection from financial liability.  Approval from these authorities protects an estate administrator from personal liability, fines, and penalties. For instance, the Circuit Court approves matters about elective shares and will interpretation, among others. When the Circuit Court issues an Order, then the administrator fulfilled his or her duties, absent any fraud on the Court. This eliminates any recourse against the administrator.

The Commissioner of Accounts must approve the administrator’s payment and any legal fees. Prior to approval, the Commissioner reviews several aspects of the work and the amount of the fees. If the Commissioner detects certain errors, she may not approve the compensation or may fine an administrator.

If you are the estate administrator, then you should expect to appear before the Circuit Court and the Commissioner of Accounts.  The Law Office of Maria T Patente PLLC carefully guides clients through the process, represents clients before the tribunals for a smooth probate administration.

Complete Fiduciary Services as Estate Administrator

If no person chooses to become an estate administrator or qualifies for the job, your best option is to hire an attorney to fulfill the duties. An estate administrator requires numerous skills, including accounting, observing deadlines, and handling tax issues, in addition to legal knowledge of wills and probate law.

In addition, the responsibilities of the job can place the administrator in the center of challenging family dynamics.  It can be difficult to manage this work during bereavement and as new needs arise in the family. Contact the Law Office of Maria T. Patente PLLC for a consultation. Your rights, prosperity, and peace of mind may be best protected by hiring us to administer the entire probate estate from qualification to final payment.

Guardianship of Minors

The Law Office of Maria T Patente PLLC provides effective and dedicated legal advocacy in Circuit Court in guardianship and conservatorships of minor children. 

The process for appointment of guardians varies for children under fourteen compared to those aged fourteen and over.   Children who are fourteen or over can select their guardian with approval from the Clerk of the Circuit Court. In contrast, the Court may play a very active role in deciding the appropriate guardian for young minor children. Although the Court gives substantial deference to the will of parents or guardians, the Court ultimately decides guardianship based on the “best interest of the child” based on evidence.

Elective Share Assertions

Elective share assertions are one of the most complicated aspects of probate estate administration. The calculation is laborious and significantly impacts inheritances. An estate administrator must handle elective share matters correctly for her/his own protection. This usually means retaining an attorney.

Elective Share Assertions with an Incapacitated Spouse

An agent under a power of attorney or a conservator may assert elective share rights for an incapacitated spouse. Elective share rights almost aways impact Medicaid eligibility for surviving spouses who receive Medicaid. If the surviving spouse waives the elective share, then Medicaid determines a penalty period based on the amount of the elective share waived. The penalty period is a period of time when a needy individual will not have the benefits of the Medicaid price reductions or payments. This can create a dangerous situation when a person needs services but has not way to pay for them. Sometimes elder law planning strategies can prevent the likelihood of this unfortunate situation.

Calculating the Elective Share

The Virginia Code defines the amount of the elective share. The elective share is based on a percentage of the “augmented estate”, which includes the decedent’s probate estate,  the decedent’s non-probate transfers, the surviving spouse’s property, and the surviving spouse’s non-probate transfers.  The estate administrator must identify, classify, and value this property. The augmented estate does not include certain property. For instance, the augmented estate excludes property received by the decedent and maintained separately throughout the marriage.

Responsibility of Administrators with the Elective Share

The estate administrator may need to hire qualified evaluators to determine market values for some assets. After calculating the value of the augmented estate, the estate administrator determines the elective share by taking a percentage of the augmented estate based on the length of the marriage prior to the decedent’s death.  The percentage ranges from 3% for  less than one year or marriage to 100% for fifteen or more years of marriage. After completing this work, the estate administrator must appear before the Circuit Court to prove the amount of the elective share to obtain an Order for approval.

The Law Office of Maria T. Patente PLLC assists both estate administrators and surviving spouses with elective share matters. Call today to arrange an appointment.

Seek and Find the Help You Need

Additional legal difficulties may arise after the death of a loved one. If you are dealing with emotional loss and encountering legal problems, call the Law Office of Maria T. Patente PLLC for legal services to guide you through to this challenging time.

DISCLAIMER: Content on this website is provided for informational, educational, and marketing purposes only, and does not constitute legal advice. If you seek legal advice on a specific situation, you should contact an attorney.