Probate & Estate F.A.Q

Questions and Answers from our Attorneys

Q: What are methods for preserving assets of the probate estate?

A: There are many ways to preserve probate estate assets. In association with an attorney and tax advisor, you can:

• Determine whether administration expenses and casualty losses should be reported on the estate tax return or on the estate's income tax return.
• Consider whether there are income tax savings opportunities on the decedent's final return (such as whether or not a joint return should be filed with the surviving spouse).
• Consider whether assets should be valued at the date of the decedent's death or six months later (or, if the assets have been distributed prior to six months after the decedent's death, the date of the disposition of the assets).

Q: What is an executor?

A: The person named in a will to be in charge of winding up the deceased financial affairs is known as the executor, at times called a personal representative in some states. The duties entail taking care of property, paying bills and taxes, and seeing to it that assets are transferred to their new rightful owners. If probate court proceedings are required, as they often are, the executor will generally hire a lawyer to assist with the complicated probate process.

Q:How do I choose an executor?

A:  Most executors do not require specialized financial or legal knowledge; most people name their spouse or an adult child. Again, it must be a person who has the capacity to manage a complicated situation, hire lawyers, accountants, estate planners, and pay them from the assets of the estate.

The chosen executor should be pragmatic, honest, and most importantly, well organized. If possible, name someone who lives nearby and who is familiar with your financial matters; that will make it easier to do chores like collecting mail, finding important records and papers, and arranging meetings with advisors and family members.

Q: I have a joint tenancy. Is this as good as having a will?

A: No, there is an important distinction between the two. A joint tenancy is one way of owning property with another person, where the person retains the right of survivorship. Due to the construction of this arrangement, the property is not part of the deceased's estate and so does not enter into the probate process. However, while it may sound initially to be a good way to keep certain assets out of probate, the joint tenancy is open for one of the persons to sell their interest, and as such, it can become open for seizure from creditors. If you have questions about which method is right for your particular situation, one of our Indianapolis based estate planners can assist you in deciding upon an appropriate solution.

Q: What are the exact duties that an executor can expect to undertake?

• Paying claims
• Distributing assets and property of the deceased to the proper parties
• Giving notice to the proper parties
• Settling debts of the estate
• Settling claim disputes
• Collecting all assets and property of the deceased

Q: Are there restrictions on whom I may choose as my executor?

A: The only restrictions vary from state to state. Some states will not allow executors to be children under 18 or convicted felons. Other states have strict restrictions on out of state executors. Some states require that an out of state executor obtain insurance that protects beneficiaries against wrongful use of estate assets, known as a bond.

Q: Under what circumstances is a will contested and taken to probate court?

A: The contestor is almost always an invested party, as in an heir or the guardian of an heir working on their behalf. Grounds of contesting a will vary from state to state, as their are only specific grounds accepted by the probate court. Typical grounds are fraud, incapacity, and wrongful influence or intimidation of the executor.