Understanding Probate: What Is It and How Do I File?
At the same time you work to complete the seven steps detailed above, you may also need to start the probate process with the local courts.
Probate is a legal process to finalize and administer a loved one’s estate after death. It will be necessary to work closely with the Probate Court in the district where your loved one died to:
- Determining the validity of the Will(s)
- Identify and inventory the deceased’s property
- Appraise the property
- Pay your loved one’s debts and taxes
- and distribute the remaining property according to the Will or according
to state law in the absence of a Will
In Connecticut, if someone has over $40,000 in total assets or has real property in the state, they will probably have to have their assets Probated. If their assets are below $40,000, you may be able to utilize a streamlined process for “small estates.”
I. What Does It Cost?
The cost of probate varies depending on the size of the estate, but common expenses of include executor’s fees, attorney’s fees, accounting fees, court fees, appraisal costs and surety bonds. These expenses typically account for 5-10% of the total estate value.
II. Do All Assets Go Through Probate?
Fortunately, not all assets are subject to the expenses and delays of the probate court following the death of a loved one. Here is a brief overview of some assets that may avoid oversight from the probate courts:
- Property held in joint tenancy
- Other jointly owned assets
- Property held in joint tenancy
- Other jointly owned assets
- Assets with named beneficiaries such as insurance policies, IRAs and annuities
- Assets placed in a living trust
- Informal trust accounts, also referred to as Totten Trusts or payable on death (POD) accounts
- Banking and investment products, such as savings, checking accounts, CDs, and brokerage accounts with a Transfer on Death (TOD) beneficiary
Keep in mind that while these assets generally are not subject to probate, there may be instances when they will need to go before the court. This typically happens when a beneficiary is not properly named or is no longer alive at the time of the deceased’s passing.
III. Do I Need An Attorney to File Probate?
Because Probate is such a time consuming, costly and complicated process, you should seek the help of a Probate attorney local to the area in which your loved one passed. A skilled attorney will help to ensure that all legal obligations are met and help to speed up the overall process. Working with an attorney will also help you to minimize costs commonly associated with oversights, tax problems and long drawn-out claims.
IV. Probate For Property In Multiple States
If your loved one owned property outside of Connecticut at the time of his or her passing, you will likely need to file probate in that state as well. As you can imagine, this complicates things significantly and you will likely need to hire an out-of-state attorney to handle this separate probate matter. We can assist you in finding an out-of-state attorney who will best meet your needs during this sensitive time.
V. My Loved One Had a Trust... Can I Avoid Probate?
If your loved one died with a Trust in place, it may be possible to avoid most of the Probate process. However, in Connecticut, you will still need to file a Connecticut Estate Tax
Return with the Probate Court and pay a probate fee that is calculated based on the size of your loved one’s gross estate. The Probate Court Fee with interest can become the personal liability of the named executor or those who receive the assets that are reportable on the Connecticut Estate Tax Return if it is not properly filed and the fee paid.
So long as the Trust has stayed updated and your loved one’s assets are properly owned by the Trust, the Trust can be administered privately with the help of your attorney. If the Trust was not properly funded (meaning assets were not titled in the name of the Trust) you may still need to go through Probate. Your attorney will help to determine your next steps.
VI. The Role of a Trust Administrator
Most people appreciate that assets held in trust are much easier to administer and distribute after death, but they also need to know that they are required to do many things before the distribution of assets can occur.
These obligations often vary from state to state, but you will want to complete the following tasks:
- Notifying beneficiaries;
- Valuation and Liquidation of Assets
- Paying Debts and Taxes of the Trust
- Filing Tax Return
- Distribution of Remainder of the Assets to Beneficiaries
The trustee also has to follow the accounting and reporting requirements of the trust document, and they are responsible for defending the trust against all claims of creditors or excluded heirs. It’s important to take these duties very seriously, as you could be held personally liable for mistakes or oversights. Again, a qualified attorney can assist you with these duties to ensure they are carried out properly and that the assets are distributed in a timely manner.
VII. Getting Help and Final Steps
Whether your loved one had a small estate or a large estate protected by a trust, as you can see the process to administer that estate can be costly, time consuming and often confusing.
Working with an attorney will not only alleviate much of this stress, but will ensure that your loved one’s affairs are handled without mistakes, and that all court and government-mandated deadlines are met.
At a time when you may not already be thinking clearly and feeling overwhelmed with grief, having a professional on your side to deal with creditors, financial statements, taxes and squabbling family members should not be underestimated. More importantly, if you are a surviving spouse or child depending on your loved one’s death benefits or inheritance to cover daily living expenses, working with an attorney can help you expedite the process and receive what you are entitled to faster and with less stress.
No matter what your situation is today, give yourself and your family the peace of mind knowing that your loved one’s wishes are being carried out in the best way possible.
The attorneys at Weatherby & Associates, PC are here to help during your family’s time of need. We offer free consultations, and will tell you upfront the best avenue to take – even if that road doesn’t involve an attorney. Call the Weatherby & Associates, PC at (860) 769-6938 and ask to schedule a consultation at no-charge with the mention of this guide.
VIII. How Long Does Probate Take?
Here in Connecticut the probate process can take anywhere from six months to a few years to complete. The length of the probate proceedings depends on the value and complexity of the estate, the existence of a will, location of real property and potential disputes with creditors or other heirs.