What’s Involved in the Probate Process?

SWAAY’s recent article entitled “What is the Probate Process in Florida?” says that while every state has its own laws, the probate process can be fairly similar. Here are the basic steps in the probate process:

The family consults with an experienced probate attorney. Those mentioned in the decedent’s will should meet with a probate lawyer. During the meeting, all relevant documentation like the list of debts, life insurance policies, financial statements, real estate title deeds, and the will should be available.

Filing the petition. The process would be in initiated by the executor or personal representative named in the will. He or she is in charge of distributing the estate’s assets. If there’s no will, you can ask an estate planning attorney to petition a court to appoint an executor. When the court approves the estate representative, the Letters of Administration are issued as evidence of legal authority to act as the executor. The executor will pay state taxes, funeral costs, and creditor claims on behalf of the decedent. He or she will also notice creditors and beneficiaries, coordinate the asset distribution and then close the probate estate.

Noticing beneficiaries and creditors. The executor must notify all beneficiaries of trust estates, the surviving spouse and all parties that have the rights of inheritance. Creditors of the deceased will also want to be paid and will make a claim on the estate.

Obtaining the letters of administration (letters testamentary) obtained from the probate court. After the executor obtains the letter, he or she will open the estate account at a bank. Statements and assets that were in the deceased name will be liquidated and sold, if there’s a need. Proceeds obtained from the sale of property are kept in the estate account and are later distributed.

Settling all expenses, taxes, and estate debts. By law, the decedent’s debts must typically be settled prior to any distributions to the heirs. The executor will also prepare a final income tax return for the estate. Note that life insurance policies and retirement savings are distributed to heirs despite the debts owed, as they transfer by beneficiary designation outside of the will and probate.

Conducting an inventory of the estate. The executor will have conducted a final account of the remaining estate. This accounting will include the fees paid to the executor, probate expenses, cost of assets and the charges incurred when settling debts.

Distributing the assets. After the creditor claims have been settled, the executor will ask the court to transfer all assets to successors in compliance with state law or the provisions of the will. The court will issue an order to move the assets. If there’s no will, the state probate succession laws will decide who is entitled to receive a share of the property.

Finalizing the probate estate. The last step is for the executor to formally close the estate. The includes payment to creditors and distribution of assets, preparing a final distribution document and a closing affidavit that states that the assets were adequately distributed to all heirs.

Reference: SWAAY (Aug. 24, 2020) “What is the Probate Process in Florida?”

Four Retirement Issues for 2019

A host of new retirement savings options will be on the horizon for millions of Americans whose workplace does not offer 401(k) plans, says The New York Times in “For American Workers, 4 Key Retirement Issues to Watch in 2019.” The article takes a broad view of retirement policy topics, covering everything from Congress working on a plan to stop sharp cuts in traditional pensions, to the SEC’s battle over fiduciary responsibilities to protect investors and the possible expansion of Social Security.

Here are some of the highlights:

Workplace Savings Plans. Features like automatic enrollment and matching employer contributions make these plans a great way to help save for retirement. However, a third of workers in the private sector don’t have access to these plans. In 2019, some states are starting programs to automatically sign up workers who don’t have access to these plans at work. Employers in some states will be required to set up automatic payroll deductions, although they won’t have to make matching contributions.

Congress is expected to work on legislation that would make it easier for employers to create and join a single 401(k) plan that they could offer. This “open multiple-employer plan” would be offered by private plan custodians. It may take a while for this to get up and running.

Pension Insolvency Crisis. A special congressional committee is working on heading off an insolvency crisis that could lead to big cuts in pension benefits for millions of workers. More than 10 million workers and retirees are covered by multi-employer plans, which are severely underfunded. The Pension Benefit Guaranty Corporation, a federal insurance program for pensions, will run out of money by 2025, if nothing changes. This is a complex problem, with no easy solution.

Protecting Investors. This battle over requiring fiduciary standards by brokers has been going on for a while. It centers on requiring brokers and others to put customer’s financial interests first. A rule from the Department of Labor from the Obama era never made it past opposition from the financial services and insurance industries. A proposed new rule from the Securities and Exchange Commission would require brokers to put their customer’s financial interests ahead of their own. However, it does not require them to act as fiduciaries. Consumers advocates are against this rule, believing that it does not go far enough.

Expanding Social Security. Expansion legislation in the Larson Bill from has more than 170 co-sponsors in the House. The bill includes a 2% increase in benefits, a generous annual COLA (Cost of Living Adjustment) and higher minimum benefits for low-income workers. How are we paying for these increases? The cap on wages subject to taxation and a gradually phased-in higher payroll tax are the sources.

Regardless what happens (or does not happen) in Washington, if retirement is in your future, 5 or 50 years from now, this is the year to have your estate plan created and ramp up your savings.

Resource: The New York Times (Dec. 23, 2018) “For American Workers, 4 Key Retirement Issues to Watch in 2019”