Arlington Law Group helps beneficiaries, executors and trustees navigate probate and administer trusts after a loved one has died or become incapacitated.
- Trust Administration
- What is Probate?
- Duties of Executors or Personal Representatives
- Checklist of Documentation to Provide to Executor
- Safekeeping for Your Will
If you are the trustee or beneficiary of a Trust, Arlington Law Group can assist you with ensuring proper Trust administration. Our services include working with trustees to perform tax planning, coordinate with beneficiaries, manage and distribute assets, and meet the trustee's fiduciary obligation to the beneficiaries. We can also assist beneficiaries when they have questions about a trust, including communicating with or handling disputes with trustees and handling tax planning for distributions from trusts.
What is probate?
"Probate" is the process of using a state's court system to transfer ownership of the property of a decedent (i.e., a deceased person) to the decedent's creditors and heirs. The courts distribute the assets of the decedent according to the decedent's Will or, if there is no Will, according to the default inheritance rules of the state. Some states have special courts that handle probate matters while other states use general trial courts to handle probate matters.
A decedent who dies with a Will is said to have died "intestate," and may be referred to as the "testator." A decedent who dies without a Will is said to have died "intestate." The entirety of the deceased person's property that goes through probate is considered the decedent's "estate." The "personal representative" is the person who is in charge of gathering, accounting, and distributing the property of the estate. The personal representative is usually either the executor appointed in the decedent's Will or (if there is no Will) the administrator who is appointed by the court. While the personal representative has primary responsibility for managing the estate, the personal representative must make periodic reports to the court and is responsible to the court for proper management.
A personal representative can usually be held personally liable for failing to manage the estate in compliance with the law, so it is important that the personal representative seek appropriate legal guidance. If the personal representative is held personally liable for mismanagement of the estate, the court can require the personal representative to pay damages out of his or her personal funds.
- Virginia has no separate probate court and therefore the Will should be probated in whichever circuit court has jurisdiction over location of the decedent's last residence.
- A personal representative is not always necessary, especially if the estate is worth less than $15,000. Then alternative methods for small estates can be used to distribute the property.
- If there is no valid Will, then the following rules of inheritance apply: (1) everything will go to the surviving spouse unless there are children from outside of the marriage -- in which case the spouse gets one third and the other two thirds is divided evenly among all of the children; (2) if there is no spouse, then the property passes to the children and their descendants; (3) if there are no children or spouse, then the property will go to the decedent's mother and father; (4) if there are no surviving parents, then the property goes to the sisters and brothers of the deceased (5) if there are no surviving heirs at law, then there are further options for the distribution of the property under Virginia state law. (VA Code § 64.2-200).
- In order to probate a Will you should bring the following to the circuit court with jurisdiction over the decedent's last residence: (1) the original Will, (2) a certified copy of the death certificate, (3) witnesses to the Will or depositions of witnesses (not needed if the Will has a "self-proving affidavit"), (4) the names, ages, addresses and other contact information for the heirs to the Will, (5) cash or check to pay the probate fees (up to $30.00 for personal representative registration and additional fees which may vary from court to court), and (6) a state issued identification card.
- If there is no Will, bring (1) a certified copy of the death certificate, (2) names, ages, and addresses of heirs at law, (3) cash or check to pay the probate fees (up to $30.00 for personal representative registration and additional fees which may vary from court to court), and (3) a state issued identification card.
- There is no time limit for when this process must start, however, under some circumstances it is best to contact legal representation quickly to prevent problems with the long-term administration of the estate.
- Maryland manages its estate documents through the Office of the Register of Wills and decides disputes in their Orphan Courts located in each county
- Maryland separates "small" estates from other estates in order to provide an expedited process for small estates. Small estates are defined as being worth (1) $50,000.00 or less generally and (2) $100,000.00 or less if the only heir is a spouse.
- The value of the property is determined by the fair market value at the time of death less the debts secured by the estate.
- The process for probate of a small estate involves (1) submission of a Petition for Probate with a "Schedule B" form requiring a listing all the debts and property in a small estate and all the interested parties of the estate (2) consenting to appoint the personal representative OR appointment of resident agent if the petitioner is not a Maryland resident (3) providing proof of execution of a Will if the Will lacks an attestation clause (4) providing an information report listing trusts, jointly held property, retirement and P.O.D. accounts, gifts made within two years of death, and other non-probate property (5) receipt of a "Notice of Appointment" for the personal representative (6) providing evidence of paid funeral bills (7) securing bond to insure against a personal representative's mishandling of the estate and (8) providing a copy of the death certificate. Commissions for personal representatives are not available under a small estate administration.
- The process for probating regular estates (defined as those in excess of $50K or $100K if all goes to just one heir) involves submission of (1) Petition for Probate with Schedule A form attached (2) Notice of Appointment (3) required bond and bond forms (4) Consent to Appointment of Personal Representative OR Appointment of Resident Agent if petitioner is not a Maryland resident (5) proof of execution of the Will if the Will lacks attestation clause (6) List of Interested Persons (7) Copy of death certificates
- Inventory and Information Report: Within three months from the date of appointment the personal representative must complete and submit the inventory with schedules and an information report.
- First Account: Within nine months from the date of the appointment the personal representative must file the first account. This must include the inventoried assets and all the records of the activity of the estate's administration. Subsequent accounts will need to be filed until the estate is closed.
- Note: All forms can be found at http://registers.maryland.gov/main/forms.html.
- More information can be found at http://registers.maryland.gov/main/packets/AdministrationBooklet07.pdf
District of Columbia (DC) Probate
- The District of Columbia makes several estate distinctions. The main two of these are the small and large estate.
- Small Estates: To open a small estate, the petitioner will need to make an appointment with a small estate specialist and bring the following to the appointment: (1) a petition for administration of small estate form (2) the decedent's Will and a certificate of filing Will form (3) photo identification of the petitioner with signature (4) death certificate of the decedent (5) funeral bills and receipts for funeral or cremation (6) written list of all assets that the decedent owned or co-owned at death and supporting documentation, including a letter from the D.C. unclaimed property unit (7) names and addresses of the heirs at law (8) check or money order for the fees payable to the Register of Wills and (9) publication costs for newspaper article.
- A small estate specialist will then make sure the packet complies with the law and check whether publication is necessary. Then the petition will be accepted for filing and a judge will sign an order to appoint a personal representative. The judge will ask that the personal representative file a Verification of Assets or a final order declaring who can receive the assets. The order will also provide for sending a Notice of Appointment, Notice of Creditors and Notice to Unknown Heirs to the newspaper. (potential heirs and creditors will have thirty days to claim a right against the estate).
- To close the small estate the court will issue a final order. This will give directions to the personal representatives to distribute the property in the estate promptly afterwards.
- Attorneys for personal representatives cannot receive more than $1,000 from the Will or estate.
- Large Estates: For large estates with no irregularities, "Abbreviated Probate" allows for a faster resolution. For large estates where abbreviated probate is not available (e.g. the need to prove the death of the decedent, to probate a lost Will, etc.) the petitioner must go through the "Standard Probate" procedure.
- Abbreviated Probate: to begin the Abbreviated Probate procedure, the petitioner must provide to the Register of Wills (1) Petition for Probate, (2) Consent to Appointment of Personal Representative, (3) Waiver of Personal Representative's Bond or General Bond already signed by the petitioner (the bond company representative will sign it later), (4) an original Notice of Appointment, (5) Notice to Creditors and Notice to Unknown Heirs, (6) the original Will (if there is one), (7) the form Abbreviated Probate Order and (8) pre-addressed envelopes for mailing letters of qualification and copies of Wills back to the petitioner.
- Standard Probate: beginning the Standard Probate process is similar to beginning the Abbreviated Probate process, except that it requires drafting documents requesting the specific relief sought from the court. Consultation with a probate attorney is highly advised for situations requiring standard probate.
Duties of Executors or Personal Representatives
The duties of personal representatives are similar from state to state.
- A personal representative in Virginia has the following duties: providing notice to interested parties; filing income, inheritance, and estate taxes and pay all taxes; filing an inventory; paying all creditors of the estate; disbursement of remaining assets to the beneficiaries of the estate.
- The personal representative in Maryland has the fiduciary obligation to settle the estate and distribute the assets to the beneficiaries of that estate. This position is held to the highest standard of care. The personal representative can incur liability if they fail to meet that standard. They have the power to receive and hold assets, deposit funds, pay debts, pay taxes, insure property, invest or sell property, employ specialists, and finally distribute the remaining property to the beneficiaries.
- In DC the Personal Representative is responsible for gathering all assets, paying all debts, and distributing the payouts to the heirs as soon as the court determines the estate is closed.
Arlington Law Group can act as the executor of the estate or we can work with the executor in a supporting role to make sure the executor maintains the required standard of care and meets all fiduciary duties. We will work with the executor in order to file the appropriate paperwork and eventually distribute the remaining estate to the estate beneficiaries.
Checklist of Documentation to Provide to Executor:
- Property information
- Bank Account Information
- Tax Returns
- Safety Deposit Box Location and Number
- Governing documents of Companies Owned
Safekeeping for Your Will
Virginia: The Will can be filed for safekeeping in the clerk's office in the county where the testator resides. There is a $2.00 filing fee. A photo identification is required for the testator to remove the Will from the clerk's office. The testator may give written, notarized consent for the Will to be retrieved by another.
Maryland: You may file your Will with the Register of Wills for safekeeping for a fee of $5.00. For that fee, the Will is sealed in a pre-numbered envelope and you will be asked to print your name, address and date filed and who is filing on an area directly on the envelope. Make sure all the beneficiaries to your estate and your personal representative know where the Will is located. Also if you need to make changes or copies you must retrieve the Will and re-file it for an additional $5.00 fee. Only yourself and a designated person authorized by you in writing may retrieve the Will.
District of Columbia: Wills can be filed with the probate Division at the Clerk's office: 515 5th Street, NW, Room 314, Washington DC 20001. The Will should be filed within 90 days after death accompanied with a certificate of Filing a Will. There is no fee for this. You may also file an Affidavit of Witness to explain any irregularity in the Will.
There is no way to file a Will with the DC probate division for safe keeping before death, so alternative arrangements should be made. It is not advisable to keep the original Will in any place where your executor would have difficulty retrieving it (e.g. avoid safety deposit boxes in the name of the testator only).