Probate Estate and Trust Estate Administration
Probate Estate: a Court supervised and protected process:
Probate, a Court supervised and protected process:Probate is a term that means the Court process, whereby through a court-supervised system, a deceased person's assets are transferred to the rightful heirs and beneficiaries, the decedents taxes are paid and debts and claims are handled. The probate process includes the validation of a Last Will & Testament as the true and final Will of a person to transfer his or her assets to heirs and beneficiaries. A fiduciary, an Executor, is hired, usually the person named in the Last Will, who will take responsibility with the help of an attorney, and who takes an Oath to comply with the law and who will report to the Court in written signed reports and who is subject to Court supervision.
Every State, including Iowa and Illinois have some important differences in the probate process. There are unique advantages to the probate process. For example the claims of creditors will be cut off (ie 4 months in Iowa) after a publication in newspapers that the Estate was filed and a Fiduciary appointed. This will limit the time that creditors can present their claims. It sets dead lines for people to challenge the provisions of Last Will , or the appointment of a fiduciary, or to make a claim of undue influence.
In Iowa and Illinois the process includes:
- Filing of the Last Will & Testament, an Oath of Office, a Designation of Attorney, Witness statements, and Admission of the Court of the Last Will and appointment of the fiduciary.
- Publication in the newspaper of the admission of the Will and fiduciary appointment, with notice to creditor to file claims in four months or be barred from doing so and notice to claimants about the Will and fiduciary, so there is a time limit to challenge both of these items.
- Preparing and filing with the Court of a written inventory of assets and debts
- Payment of taxes and filing of tax returns, as needed.
- Collection and management of assets of the decedents while the probate is in process, paying the regular bills and such things as funeral service, and preserving the assets.
- Making final accounting of all actions taken and accounting of the assets and debts and distribution to heirs and beneficiaries
We can help people with Trust Administration, which may involve no supervision by the Court or may involve some supervision by the Court. We help the fiduciary with decisions about how and when to distribute and manage assets of deceased persons who had Living Trusts, created through a Revocable Trust (with no Last Will), and/or a Testamentary Trust in a Last Will and Testament. This process usually does not involve the courts when the trust was properly funded before death. many Trusts are not supervised by the Courts but the fiduciary has duties to the Trust and the beneficiaries, so legal guidance is needed to avoid problems and resolve disputes.
The debts of the decedent are paid by the trustee first, then the assets are distributed in whatever way the decedent specified in the Living Trust.
The trust document will specify where the property is to go, and Trust Administration makes sure it is done. This involves dealing with stocks, mutual funds, drafting deeds, selling real property, auctioning personal effects, as well as making sure tax returns are prepared and filed (income tax and estate tax returns).
The Trust may have to deal with debts and claimants, as well as beneficiaries who have questions or claims. .
Many times, the Living Trust specifies that property will be held for a minor child for a number of years. The trustee will make sure that is done. Sometimes the Living Trust specifies that a new trust will be created for a disabled beneficiary. Establishing that new trust is also a job of the trustee during Trust Administration.
Once the distribution is complete, and all of the wishes of the decedent are completed, the trust is terminated. This all happens without court involvement, but it is often very helpful to have an experienced attorney guiding the process.