What is Probate Administration?
Probate is the formal process initiated in your local probate court to transfer your stuff when you die (assets that are solely owned by you with no named beneficiary). Your probate estate can be testate (with a will) or intestate (without a will). In a testate estate, your original last will and testament is presented to the court for its approval and appointment of your designated executor. Unbeknownst to most people, your executor is NOT free to act on your behalf after your death UNLESS he has been properly appointed by the court. This process to get him appointed is accomplished in the probate process.
Many clients come into our office indicating they want to avoid probate. That is not always necessary but may be worth consideration. The reason? The probate process requires “heirs” to agree (by signing legal papers) the will is that of the deceased person and consent to the executor being appointed. Unfortunately, this cannot always be accomplished as easily as we hope. For example, the surviving spouse may be incompetent, one of the children may be estranged and unable to be located or one of the heirs may be mentally incapacitated and therefore lack the legal capacity to sign the forms. Sometimes, the kids won’t sign, even when we thought they would. In all of these cases, additional legal procedures and costs must be expended to get the will presented and the executor appointed. The executor cannot be appointed until all of the heirs have been located, have capacity, and agree. If an heir does not agree to admit the will this can result in a “will contest”, which can be very expensive and cause significant delays.
It is very important you have a Will. If you die without a Will, your probate estate is intestate, and the state decides who gets your stuff and who your executor will be (except in this case they are called an administrator). Probating an intestate estate (no will) is more expensive and takes longer than a testate estate, so you should have a will to reduce costs and delays at your death.
If you have minor children then your will must name a guardian of those minor children or the state will decide who your children will be raised by and who will control their assets.
The worst part of probate is having to deal with expensive legal requirements and the probate court to do what you believe you should be able to do automatically all while you are dealing with the loss of a loved one. Probate takes a minimum of nine to twelve months in Connecticut, and in many cases if you are unable to meet all the requirements perfectly (as described above) it could linger for years. It is not unusual for legal fees and expenses to run between 3-4 percent of the assets in the estate.
The Executor does not need to use the attorney who drafted your will for probate. It is important when you pick your probate attorney to ensure they are experienced in probate. If you are currently going through the estate administration process, or need to initiate the process, and need legal assistance to help you navigate through the maze in probate court, please contact our office to set up a no obligation consultation.
What is Trust Administration?
Whenever someone dies with a trust, the trustee has the duty to administer the trust according to the terms of the trust. Typically, the trustee is required to produce an accounting for the beneficiaries to document all activities engaged in by the trustee during administration of the trust.
If the trust is a testamentary trust (trust set forth in a will), then the administration of the trust is done under the control of the probate court. The probate court will require and inventory be filed and that formal accountings be submitted to the probate court every three years. This can result in additional probate court and legal fees.
If the trust is a Revocable Living Trust (outside of the will), then the probate court does not have control over the trust. However, the trustee should still take steps to account to the beneficiaries to document that the activities undertaken by the Trustee were appropriate under the terms of the trust. This is usually accomplished by the Trustee preparing an accounting and having the beneficiaries approve the accounting.
In addition to accountings, a trustee may also be under the duty to file annual income tax returns for the trust.
If you are a Trustee of a trust and need guidance on how to administer the trust, please contact our office to schedule a no obligation consultation.