Part of our practice at the Law Office of Jane Frankel Sims is helping Personal Representatives and Executors with the probate process (estate administration). Often, this is the client’s first time experiencing the probate process and they have many questions. This post is an overview of some of the frequently asked questions our clients have regarding probate and acting as a Personal Representative.
What is probate?
Probate is the process by which a decedent’s assets are passed on to others. If the decedent died “testate” (with a Will), the assets are distributed according to the decedent’s Will. If the decedent died “intestate” (without a Will), the assets are distributed according to the intestacy statute of the state in which the decedent was domiciled (or, in the case of real property, the state where real property is located). For more information on intestacy statutes in Maryland, D.C., Pennsylvania and New York, please see our prior blog post here.
When is probate required?
Probate is required after death if the decedent held assets in his or her sole name or as tenants-in-common with another person. There generally is no requirement for when probate must begin, but starting quickly can avoid problems.
In Maryland, a decedent’s Will must be filed with the court even if there are no assets that need to be probated.
How is probate started?
Probate begins when the Personal Representative, Executor, or another interested party files the required documents with the Register of Wills in the county where the decedent was domiciled.
Personal Representatives should be aware that there are various types of estates, each with its own procedural requirements, determined by the value of the assets that the decedent held at the time of his or her death.
I’ve been appointed Personal Representative. What am I required to do?
As Personal Representative, you are responsible for settling the estate and distributing the assets of the estate in accordance with the decedent’s Will and the law of the jurisdiction in which the assets are being probated. This could include collecting the decedent’s assets, paying the decedent’s debts, filing financial accounts, and preparing other documents required by the Register of Wills.
Do I need an attorney to assist me to act as Personal Representative?
You are not required to hire an attorney to probate an estate. However, the Register of Wills office cannot provide legal advice. Often, in the course of probate, the Personal Representative will have questions that can be difficult to answer without knowledge of case law and statutes. An attorney can provide services that range from answering these occasional questions to assisting in the probate of the entire estate, including completing forms to be filed with the Register of Wills.
Is there anything else I need to do besides probate the estate?
There may be more to do. Some states, such as Maryland and Pennsylvania, assess inheritance tax on certain transfers of property at death, so there may be a need to file an inheritance tax return with the state. In addition, in some states, such as Maryland and D.C., there is a state-level estate tax assessed if the estate assets exceed a certain value. Lastly, if there is a surviving spouse or if the decedent’s assets and lifetime gifts are valued in excess of $5,250,000, a federal estate tax return may have to be filed.
At the Law Office of Jane Frankel Sims, we have assisted probate clients in a range of ways, from answering the occasional question to providing complete estate administration services. It is up to our clients to determine the level of involvement they wish our office to have, and we are happy to assist in all situations. The death of a loved one can be a stressful process, and we strive to make probate as easy as possible for our clients.
This post is not intended to be legal advice. If you have any questions regarding probate or estate administration, please contact a licensed attorney.