Probate and estates tips and traps: Do I need a lawyer?

After a loved one has passed away, certain steps are needed for which people often use a lawyer’s help. There are other practical and legal actions and decisions that family members can usually undertake without the help of an attorney.

Which steps require an attorney?

“Administering an estate” means to wind up somebody’s affairs and conclude all necessary business and arrangements after someone has died. “Probate “refers to the legal actions and filings necessary for assets left behind without any beneficiary named (see more below).

Certain family and practical matters – including some decisions that need to be made immediately following a death – may be necessary but usually don’t involve an attorney. Such pragmatic choices  may include contacting family members and loved ones; making funeral arrangements; deciding about organ donation; and arranging care for pets and dependents.

You can also usually take steps yourself such as ordering death certificates from the funeral director, search for and locate an original Last Will and Testament or trust documents, gathering financial records concerning assets, accounts, insurance, debts, etc. and accessing joint or Pay on Death bank accounts.

So when do you need to consult an estates or probate attorney for guidance and assistance? For sure from the start, when people are already fighting, arguing or threatening, or when you know complex issues will be involved. Otherwise, here is a description of the work that we as lawyers are usually needed to do for clients, to administer an estate.

1. Determine if probate estate proceedings (a court-administered legal process) are needed and whether or not an Executor or Administrator must be officially appointed to administer the estate. If no formal probate estate needs to be opened, and no Executor needs to be appointed, then we will not do so, and you will save a great deal of time, energy and money.
2. On the other hand, if probate estate proceedings are necessary, we will open the probate estate and get the Executor or Administrator appointed, by preparing the right paperwork filings and arranging for them to appear (in person downtown or by video) to be sworn in.
3. Inventory the assets of the decedent, including nonprobate assets such as “Pay on Death” and joint accounts, which do not pass through probate but must be accounted for on the Pennsylvania Inheritance tax return, and in other ways.
4. Make official advance arrangements to open and inventory any safe deposit box, which is usually sealed by the bank when they learn a depositor has died. This procedure requires contacting the Pennsylvania Department of Revenue and the bank ahead of time to be permitted to open the box, and later filing a report of the contents.
5. Check the PA Department of Treasury for Unclaimed Property. Individuals often leave behind small or even large amounts of unclaimed property..
6. When someone has received long term care Medicaid such as for nursing home care, the Commonwealth may have a claim for reimbursement. We are always obligated to ask and obtain a Statement of Claim from the PA Department of Human Services.
7. Advertise the estate and notify creditors and other parties in interest. Dealing with creditors is especially important in insolvent estates
8. Prepare and file probate estate filings, including Notice and Certification, Inventory, etc.
9. Sell/liquidate assets and transfer or retitle accounts to new owners. Our experienced staff most often handle this paperwork, which can be confusing and annoying. Every company has their own forms and demands a slightly different set of documents.
10. Pay bills, debts, claims and expenses.
11. Keep real estate and other assets secure, maintained and insured.
12. When an estate is insolvent and doesn’t have enough money to pay all the billing creditors, determining which creditors must be paid and which should not be paid, in the proper order of priority under Pennsylvania law.
13. Advise and assist clients generally with income tax implications of estate business, including sale or transfer of real estate, Capital gain tax, tax implications of inherited IRAs, not missing required minimum distributions, and fiduciary income tax returns filed on behalf of the estate itself.
14. Prepare and file Pennsylvania Inheritance Tax return and pay tax (and Federal estate tax as well if needed). We work on these tax returns every day, and help clients save money by making estimated payments at a discount. Separate US and PA Fiduciary Income Tax returns are also needed for many estates.
15. Complete a Family Settlement Agreement and Summary Account, OR file a formal Account for Audit in Court. At the end of the process, we often help smooth the way toward family consensus and agreement by answering questions, providing explanations and suggesting solutions for anxious or even adversarial participants.
16. Three important rules: Keep records, keep good records, and keep good, complete and accurate records.
17. Act with a heightened sense of awareness, caution and formality when we know that there are adverse, unhappy participants lurking about, who may challenge every little thing that we do.
18. Make final distributions, and establish and fund continuing Trust arrangements if needed.