estate administration

Serving Southwest Florida

Helping clients plan for their family's future, by creating an efficient, thoughtful and comprehensive estate plan that preserves their legacy and gives them peace of mind.

Probate Without a Will

Probate, also called “estate administration,” is the management and final settlement of a deceased person’s estate. It is conducted by an executor, also known as a personal representative, who is nominated in the will and approved by the court. Estate administration needs to be done when there are assets subject to probate, regardless of whether there is a will, says the article “Probating your spouse’s will” from The Huntsville Item.

Probate is the formal process of administering a person’s estate. Without a will, probate also establishes heirship. In some regions, this is a quick and easy process, while in others it is a lengthy, complex and expensive process. The complexity depends upon the size and value of the estate, whether a proper estate plan was prepared by the decedent prior to death and if there are family members or others who might contest the will.

Family dynamics can cause a tremendous amount of complications and delays, especially if the family has blended children from prior marriages or if a child has predeceased their parents.

There are some exceptions, when the estate is extremely small and when probate is not required. However, in most cases, it is required.

A recent District Court case ruled that a will not admitted to probate is not effective for proving title and thereby ownership, to real estate. A title company was sued for defamation after the title company issued a title report that included the statement that the decedent had died intestate, that is, without a will.

The decedent’s son, who was her executor, sued the title company because his mother did indeed have a will and the title report was defamatory. The court rejected this theory, and the case was brought to the Appellate Court to seek relief for the family. The Appellate Court ruled that until a will has been admitted to probate, it is not effective for the purpose of proving title to real property.

If a person owns real estate, they must have an estate plan to ensure that their property can be successfully transferred to heirs. When there is no estate plan, heirs find out how big a problem probate without a will can be when someone decides they want to sell the property or divide it up among family members.

Problems also arise when the family finds that they must pay taxes on the property or that there are expenses that must be paid to maintain the property. Without a will, the disposition of the property is determined by the state’s estate law. Things can become complicated quickly when probate without a will is required.

If the deceased spouse has children from outside the most recent marriage, those children may have rights to the property and end up owning a portion of the property along with the surviving spouse. However, neither the children nor the surviving spouse can sell the property without each other’s approval. This is a common occurrence.

There are also limitations as to how probate can be used to distribute and manage an estate. In some states, the time limit is four years from the date of death.

An estate planning attorney can help the family move through the probate process more efficiently when there is no will. A better situation would be for the family to speak with their parents about having a will and estate plan created before it’s too late.

Reference: The Huntsville Item (Nov. 22, 2020) “Probating your spouse’s will”

Suggested Key Terms: Probate, Last Will and Testament, Surviving Spouse, Estate Planning Attorney, Title

Estate Administration Tips

More than 75% of advisors polled by Key Private Bank said the most difficult part of estate administration is dealing with interfamily dynamics, according to a survey released in 2019.

Channel 10 Boston’s recent article entitled “Executor of a Family Estate? Here’s How to Avoid Infighting Over Inherited Wealth” reports that the bank surveyed 130 of its client-facing advisors about their experience with individuals who are doing estate planning.

“The sensitivities of talking about estate planning often present emotional hurdles to putting a plan in place — especially when multiple marriages and blended families are involved,” stated Karen Arth, Head of Trust with Key Private Bank, in the survey release.  The victim is often the personal representative who is responsible for the estate administration.

Many family conflicts surrounding assets and estate planning are caused by miscommunication. The older generation should ask their children to join the conversation. Without this step, there can be a lack of clarity and transparency from generation to generation. The older generation believes that it did everything right in their estate planning, but often they don’t explain their reasoning to their children and didn’t give their children a chance to offer any input.

One way to prevent drama, as well as ways to remedy conflicts already started, is to begin the communication while everyone is alive.

When a person dies, they may leave an entire estate, with a lifetime of items to family. However, many of these items might not be listed in the will. As a result, the family must divide them up among themselves. Conflicts around sentimental value can arise during the estate administration. It is a good idea to seek help from a third party, so they can bring clarity and allow everyone to cool down. There are facilitators who can help. They are not just financial advisors and family dynamics experts but also professional mediators, who can help the family come to an agreement.

It is critical to have an open dialogue, when it comes to dividing up assets. One way to avoid conflict is for the heirs to create wish lists of items they’d like, that can then be reviewed by the personal representative of the estate. Some people categorize items into groups of equal value, and others decide who gets what by rolling the dice. Whatever the method, open communication is vital to avoiding conflict during estate administration.

We can address these issues and help you plan your estate.

Reference: Channel 10 Boston (Nov. 12, 2020) “Executor of a Family Estate? Here’s How to Avoid Infighting Over Inherited Wealth”