Probate is legal proceeding that validates a Will (or imposes the state laws of descent and distribution if there is no Will) and appoints and empowers a Personal Representative for a decedent’s estate.
The principal duties of a Personal Representative are to identify and collect the decedent’s probate assets, pay bills, pay taxes, and deliver what’s left according to the Will or intestacy law.
While a Living Trust may eliminate the need for probate, the actions required of a trustee are very similar to those required of a Personal Representative especially in states that have inheritance taxes such as Nebraska and Iowa. Therefore, although Living Trusts may have other advantages, the “avoidance of probate” may be of little value.
At Badura & Wintz Law, we will discuss with you reasons why you might or might not want to create an estate plan that is designed to avoid probate, and the relative advantages, costs and requirements of doing so (such possible risks associated with joint tenancy ownership, misunderstanding that can arise after your death from Payable on Death or Transfer on Death designations, or what is involved in currently funding a Living Trust). You will have the information to make your own decisions, and we will help you implement the course you choose.
Estate And Trust Administration
Most people serve as a Personal Representative or as a Trustee only once or twice in their lives, if ever. A Personal Representative is responsible for completing many responsibilities including the following:
- Opening the estate, setting up an estate checking account for administration, and obtaining a Taxpayer Identification Number from the IRS;
- Gathering, valuing and inventorying the property owned by the person who died (including valuing and inventorying property that is not part of the probate such as joint tenancy, life insurance, retirement plan, and Payable on Death and Transfer on Death properties);
- Notifying the Department of Health and Human Services of the person’s death for possible Medicaid recovery;
- Notifying Social Security and assisting in making claims for life insurance, retirement, annuity and other benefits;
- Identifying and notifying the decedent’s other creditors, heirs and devisees;
- Determining valid debts and paying creditors and income taxes;
- Preparing an inheritance tax return for County Attorney and Court approval;
- Wrapping up the business affairs of the person who died;
- Transferring property owned by the person who died to the right persons, charities or a trust; and
- Timely closing the probate when everything is done.
Living Trust Trustees
Almost all of the above tasks also need to be performed by trustees of Living Trusts after the trust creator's death. These duties have statutory and court-imposed deadlines and can be overwhelming, especially in times of loss and sadness. We at Badura & Wintz Law are not only very familiar with the duties of Personal Representatives and Trustees; we have also developed procedures and calendars and have experienced lawyers and staff to assist Personal Representatives and Trustees in timely keeping the court informed of his or her progress and filing all required documents.
We are here to help you every step of the way. If you accept appointment to serve as a Personal Representative or Trustee, you will be held to high standards of care and are responsible for understanding and implementing the terms of the Will or trust. It is very important that you understand the Will or trust so that you know who the beneficiaries are, what they are to receive and when, and who, if any, your co-fiduciaries are. At our initial meeting, we review with you step-by-step key provisions of the Will or trust (or both) so that you understand your role and what the Will or trust and applicable law provide. We will then serve as your professional legal