The Challenges of Inherited Property
Though movies may depict inheriting property as simple as an attorney reading a will, the legal process for disbursing a loved one’s belongings is often a painstaking administrative process. Unless a loved one has established a living trust, most estates must be processed through a Probate Court, which has stringent requirements for the accounting and distribution of a decedent’s estate.
The probate process typically requires several appearances in court, each bearing importance in the transfer of property from the deceased first to the estate, and then from the estate to the beneficiaries. In most cases the executor of the estate, (i.e., the individual identified in the will as the caretaker of the estate’s administration), should consider forming a team of expert probate professionals to ensure a competent and expeditious journey through the process.
Three Key Players in the Probate Process
The Probate Attorney
A probate attorney provides guidance and advice regarding collection of important documents, filing of court-mandated forms, and representation in court hearings.
Because of the technical nature of the probate process, the executor should pursue an attorney with considerable probate experience. These lawyers are usually characterized as Trust and Estate Attorneys, and a simple on-line search will provide a strong list of candidates for interview and selection. The executor should consider the special needs of the estate, for example a tenant residing in the probate property, and question each candidate on a proposed plan for resolving the potential problem. Regardless of the answers, the executor will be able to determine not only competence of counsel, but also an ability to effectively communicate. (The most common complaint regarding lawyers is ineffective communication.) The interview process will also provide a feeling for rapport with counsel; the process can be a lengthy one, and it important to have a strong relationship over time. Of course, the executor should also diligently seek and obtain references from past clients before making a final determination.
The Probate Real Estate Agent
Selling real property, such as a family residence, is quite common in probate matters. Indeed, the sale of the loved one’s home is often necessary in order to liquidate the large asset for payment of creditors and distribution to multiple beneficiaries.
Much like choosing a capable and experienced probate attorney, the executor should take great care in selecting a certified probate real estate agent. Jurisdictions differ, but most probate courts require court confirmation of a residential sale, which in turn requires specific administrative compliance with probate law. Unless the real estate agent has extensive experience with probate matters, the sale of a family home can be delayed or even nullified for failure to abide by the court’s requirements.
The executor should interview several candidates, using a similar method as described above. The executor should limit these candidates to probate real estate agents who do business in the region where the residence is located. The prospective agents should have significant experience with probate sales generally, and specifically with homes of similar value as the loved one’s residence. This ensures that your agent is familiar with the jurisdictional laws and ordinances that may impact your sale. Because complicated issues often arise during a probate sale, the executor should confirm that the selected realtor possesses either a Certified Probate Expert (CPE) or Certified Probate Real Estate Specialist (CPRES) designation.
Though the court process may delay the sale of a residence, the executor should begin a relationship with a probate real estate agent early in the process. Before the sale, a strong agent will be able to obtain local market updates, determine the property’s value, and prepare potential plans for sale.
The Personal Representative
The personal representative, often called the executor, is the person responsible for transacting the final business of the decedent’s estate and distributing the estate’s assets to its beneficiaries. As discussed above, this individual is named in the decedent’s will, and is commonly a family member and beneficiary. Most jurisdictions do not mandate any “minimum qualifications” for acting as a personal representative. That is, one need not be a financial expert or a lawyer to administer the estate. However, probate courts impose a fiduciary duty on a personal representative, which requires that the assets and liabilities with the utmost honesty, impartiality and diligence.
A personal representative, though named in a will, may encounter circumstances when it is best to “hire out” the responsibilities to a professional. Known as a professional fiduciary or a paid executor, this individual serves as neutral, third-party representative of the estate. The fiduciary operates without the skewed perspective that relations of the decedent might have while inventorying, selling and distributing the estate’s assets. The executor should consult with legal counsel before pursuing this path, but a paid executor is a strong option where the will may be contested or there is contention among beneficiaries. In such cases, the named executor/beneficiary can eliminate suspicion of self-serving acts through retention of the professional.
Several states have organizations to help individuals find a licensed and experienced professional fiduciary. Most probate real estate agents and probate attorneys will also have recommendations based on earlier matters.
I hope this article has been informative and helpful. I would be honored to assist your family. Every situation is special, so our team is available to discuss your needs in a preliminary telephone conference. Based on the information gathered, we research and analyze your circumstances and needs in preparation for a personal meeting with family members. We discuss all options and answer all of your questions, then set out to execute our strategy to meet all your needs.
Call me to see how we can help.
Matt DeLine, CPRES and CPE
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