Probate and Trust Administration

When a loved one passes away, his or her estate must go through a "settlement" process.

Public or Private Settlement

Probate is generally needed to "unfreeze" assets owned solely in one's name at death. Probate can be a time-consuming, frustrating, and expensive process. Estate planning during lifetime can avoid probate, but after death probate is likely needed if assets are titled in the deceased person's sole name. We strive to demystify and streamline the probate process as much as possible.

Every probate estate is unique, but most involve the following steps:

Filing of a petition with the proper probate court.
Notice to heirs under the Will or to statutory heirs if no Will exists
Petition to appoint an Executor or Administrator for the estate.
Inventory and appraisal of estate assets
Payment of estate debts to rightful creditors
Filing of returns and payment of taxes, including estate taxes if applicable
Sale of certain estate assets
Accounting to Court and interested parties
Final distribution of assets to legatees or heirs

The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. While legal representation is not required, it is highly advisable for an Executor or Administrator to secure professional assistance with the estate settlement, to ensure that they meet all their responsibilities.

If your loved one owned his or her assets through a well drafted and properly funded living Trust, it is likely that no probate is necessary. Trustees still must go through many of the same settlement steps, but they generally may do so privately and without the same formalities. Among other things, Trustees should list and value assets, pay debts and expenses, file required tax returns, account for assets, obtain proper releases from creditors and beneficiaries, and distribute or manage assets as designated in the Trust. Trustees also should seek some level of professional help with Trust administration to ensure they meet all of their legal obligations.

Legal Help with Estate Settlement

While you should get timely and appropriate assistance from an attorney, it need not be the same attorney or law firm which drafted or retains possession of the Will or Trust.

Efficient estate settlement requires a thoughtful process. At Ward Legal Group PC our process reflects the fact that estate planning and settlement is the only work we do. We can provide immediate help in addressing both the technical and human aspects of estate settlement.

Too little attention is paid to the human factor in settling estates. No one is at his or her best when grieving the loss of a loved one. Yet Executors, Trustees and Beneficiaries alike are challenged to make important decisions and to focus on legal details soon after death. Frustrations abound. The biggest are unnecessary delays and feelings of being "kept in the dark" about estate proceedings or Trust affairs. Prompt action, a sound plan to share information, and careful handling of sensitive issues such as disposing of personal effects can lead to a more humane settlement.

Immediate Help if a Loved One Has Died

Avoid fundamental mistakes:

You have no authority to act as Agent under a Power of Attorney. When the Principal dies, the Power of Attorney expires.
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No one has authority to act for the estate until they are appointed by the Probate Court. This is true, even if you are named Executor under the Will, and even if "everyone" agrees.
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This means that you proceed at your own risk. You may wish to do nothing more than act to protect and preserve estate property or other interests until such time as you are appointed by the Probate Court. For example, you likely will not be faulted for securing assets against damage, theft or removal.
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Estate property cannot be distributed to anyone without prior Probate Court approval.
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Rules regarding the authority of Trustees under a Trust are different. Although you may have immediate authority to act as to trust assets, it is recommended that you likewise take only necessary protective actions until legal advice is obtained.
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Persons who may be entitled to receive an asset from the deceased, without going through probate, should not accept or exercise any control over the asset until legal advice is first obtained. This includes, for example, a joint property owner, such as the joint owner of a bank account, or a beneficiary of an insurance policy, an annuity, or an IRA, 401k, or other retirement plan. Premature action may reduce after-death planning options for death tax avoidance and other goals which may be important to the estate, the recipient, or both.
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Get immediate legal advice from a qualified and experienced attorney.

Prepare for the initial conference with the attorney:

Locate important papers and documents, such as estate planning documents, deeds, title certificates, passbooks, insurance policies and similar items.
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Do a detailed family tree. List family members, whether natural or adopted, both living and deceased. Provide address and phone number for living family members and for other named beneficiaries. Provide social security numbers for beneficiaries.
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List known assets and values, and provide backup documentation. Determine whether assets are properly secured and insured.
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List known debts and obligations, and provide backup documentation.

Ward Legal Group PC is an estate planning and elder law firm serving all of New Hampshire and Vermont, including Keene and the nearby areas of Peterborough, Walpole, Brattleboro, Wilmington and Bellows Falls.