Probate is a legal process where the validity of a will is established before a state court. Probate proceedings also include empowering the decedent’s chosen representative (“executor”) to act on behalf of the decedent’s estate, as well as overseeing the inventory and distribution of the decedent’s property, and the payment of the decedent’s debts.
Probate can be time-consuming and expensive; accordingly, a variety of creative legal techniques have evolved to successfully avoid the formal process. These techniques include living trusts; gifts; and keeping assets out of the estate through the use of jointly-held property. The latter is a common strategy used by spouses: a checking account held by two people as joint tenants with right of survivorship prevents any balance in that account from becoming a probate asset, should one of the account-holders die.
For many probate practitioners, the goal is to avoid having any, or only a few, of an individual’s assets from ever entering probate. While avoiding probate does not circumvent federal estate or gift taxes, it can save significant money and time for all involved.
The most cumbersome type of probate is the full, formal and supervised probate proceeding. Here, the state probate court oversees the entirety of the estate administration and the probate judge must approve each and every transaction of the estate. If at all possible, this type of supervised administration is avoided. Today, supervised probate proceedings usually occur only when a will contest are involved; a party requests it; or the abilities or activities of the estate representative have been challenged in court.
The majority of state proceedings involve independent probates. Here, the role of the probate court is minimal, since prior planning has omitted the need for the formalized option. An independent executrix, once approved by the court, undertakes tasks to complete estate duties, with the court summarily approving her actions at the conclusion of the probate.
For little estates, small estate administration may be an option. Here property is transferred by affidavit, and administration may be concluded within a matter of weeks.
For legal practitioners, probate is sufficiently complicated to warrant becoming its own professional specialty. Probate attorneys are recognized in many states as experts in their chosen field by special certification (“Board Certification”).
Probate attorneys usually have a practice which overlaps in the areas of real property, estate, probate, tax, and trust law. Appearances before tax courts, probate courts, and trial courts can be a part of probate practice to such an extent that within the probate specialty, certain attorneys are deemed probate litigation specialists.
An attorney’s assistance in the probate process can be invaluable. Attorneys understand how best to “marshal” the assets, i.e., determine which assets are indeed part of the estate; how to properly file an Inventory and Appraisal of the assets; when, and in what manner, to pay the estate’s taxes, debts, and remaining liabilities; and how best to distribute those assets remaining in the estate’s inventory after all other processes have been concluded.
For example, in order to “martial” the assets, the representative of the estate must obtain his or her own tax identification number from the Internal Revenue Service. Attorneys know that this can be accomplished by submitting IRS Form SS-4 (“Application for Employer Identification Number”), which must be telecopied to the IRS (at (559) 443 – 6961) within 24 hours after the representative, has contacted the IRS (at (559) 452 – 4010) to obtain an assigned personal identification number.
Probate attorneys also assist in matters involving a decedent’s dependent children, or dependent elders. The untimely death of an individual often leaves their children or aging parents with a need for legal protection and assistance. Guardianships, conservatorships, and other ancillary proceedings are all within the expertise of the specialized probate attorney.