Probate and Estate Administration Lawyers in Fairfax County
General Counsel, P.C. also provide probate counsel and estate administration throughout Virginia, Maryland, and Washington, D.C. Probate is the court-supervised process wherein - whether with or without a will - the decedent's assets are distributed to his/her heirs. After a loved one dies, the distribution of assets and property can be a difficult and confusing process. The attorneys at General Counsel, P.C. are experienced in providing caring, compassionate and capable guidance through the probate process.
Allow General Counsel, P.C. to help you and your loved ones make it through the probate process as quickly and smoothly as possible. Call 703-556-0411 or e-mail us.
Click on our Estate Planning Dictionary to seek explanations for terms that are commonly used in probate, estate planning or estate administration discussions.
Probate administration can be very confusing. Our team of lawyers at General Counsel, P.C. has provided a list of commonly asked questions and answers below for you to learn more about probate processes.
What is Probate?
The legal process of transferring of property upon a person's death is known as "probate." People generally formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.
How Does Probate Work?
Probate process is a court-supervised process that sorts through the transfer of a person's property at death. Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and "payable on death" bank accounts). A common expression is "probating a will." This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. The probate system exists for the protection of all the parties involved.
What Happens in Probate?
The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent's property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested.
Attorneys at General Counsel, P.C. are experienced in assisting with the basic process of probating an estate, which includes:
- Collecting all probate property of the decedent;
- Paying all debts, claims and taxes owed by the estate;
- Collecting all rights to income, dividends, etc.;
- Settling any disputes; and
- Distributing or transferring the remaining property to the heirs.
If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate. The administrator will fulfill many of the same duties listed above.
Typically, people may leave property to any person they wish, and may make such designations in their will. However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent's wishes may have to be overridden by the court. For example, in most states, a spouse is entitled to a certain amount of property. Furthermore, creditors may have a claim on the property of the estate. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate. The more complex and sizable the estate, the longer and more time-consuming this process can be.
The probate process itself also carries with it a number of costs that are usually paid out of estate assets. These costs include:
- Fees of the personal representative;
- Attorneys' fees; and
- Court costs.
Types of Probate
Supervised Probate
This is the most formal and expensive method. The court plays an active role in approving each transaction. In states where it's optional, supervised administration is used for contested estates, when an interested party requests it, or when the executor's ability is questioned.
Unsupervised or Independent Probate
This is a simpler, more inexpensive method in which the number of duties and procedures is reduced and the court's role is diminished or eliminated. It's used for estates that exceed the asset limit for small-estate administration (see below) but don't require heavy court supervision. It often requires consent of all beneficiaries, unless the will specifically requests unsupervised administration.
Small Estate Probate
The simplest and fastest probate, small estate probate is not available in every state and it is only for small estates, ranging from $1,000 to $100,000, depending on state law. Property is often transferred by affidavit. Small estate administration often lasts only a few weeks.
While Maryland and Washington, D.C., have separate probate courts, Virginia does not have a separate probate court. The Circuit Court has jurisdiction over mental health and estate matters; the District Court has jurisdiction over mental health and juvenile matters.
Which State Law Applies?
In some cases, an estate may need to be administered in more than one state. Generally, the state in which the decedent resided at the time of death will be the state where the decedent's estate is probated. However, state law governs the transfer of real estate, so if the decedent owned real estate in another state, it may be necessary to do an ancillary proceeding to probate that one piece of property in the state where it is located. An ancillary proceeding is a scaled-down probate proceeding, which governs only the assets located in that state. In some instances, it may be necessary to consult two attorneys, one in the state where the decedent lived and another attorney in the state where the decedent owned real estate.
What is Estate Administration?
The terms "probate" and "estate administration" are often used together because, for the most part, they occur simultaneously. Whereas probate refers to the legal proceeding to distribute an individual's property after their death, estate planning involves gathering the assets of the estate, paying the decedent's debts, and distributing the assets that remain in the estate.
Managing the Estate and Personal Representatives
The first task in a probate proceeding is appointing a responsible party to manage the estate. This person is usually called the personal representative. In some states this position is known as the "executor." The personal representative may be an individual or a company, such as a bank. The personal representative may have been nominated by the decedent in the will. If there was no will, the court will usually appoint the surviving spouse or another family member. There may be more than one personal representative named.
Inventorying the Estate
After being appointed, the personal representative is expected to document all of the decedent's assets. This documentation is often referred to as the inventory. The personal representative must also inform the decedent's creditors that the decedent has died. If the decedent's probate assets are sufficient to pay the creditors, the personal representative will pay them from the estate. If the probate assets are insufficient, the personal representative may need to obtain court approval to determine which creditors should be paid.
Distributing the Estate
If there are any assets left after the creditors have been paid, those assets are distributed according to the will. If there is no will, the decedent is said to have died intestate. State laws vary as to how to distribute the assets of an intestate decedent.
The personal representative will also file any necessary tax returns. If the estate is owed any money, the personal representative may need to bring a lawsuit in order to collect it. If the will is contested, or if there is any other dispute over how to distribute the estate assets, the personal representative may have to "defend" the will in a probate proceeding.
General Counsel, P.C. has in-depth experience and understanding of the probate process. We can guide you through the maze of complexities and help ensure that it goes as smoothly and easily and swiftly as possible for the benefit of all involved.
We provide trusted legal counsel for probate, estate planning and estate administration. Contact General Counsel, P.C., at 703-556-0411 or e-mail us.
