Common Probate Mistakes and How to Avoid Them
Following the loss of a loved one, the last thing most people want to think about are the practical and legal ramifications of their loved one’s death. If, however, you were named as the Executor of the estate in the decedent’s Last Will and Testament, or you have been elected to handle the probate of an intestate estate (one without a Will), you must consider those aspects of the decedent’s death. If this is the first time you have administered an estate, you may be unsure of what is required. In addition, your emotional state may make it more likely you will make mistakes during the probate process. For these reasons, most Executor’s consult with an experienced probate attorney during the probate process. In the meantime, a Loveland probate attorney at Zimmer Law Office explains common probate mistakes and how to avoid them.
- Failing to consider alternatives to formal probate. One of the most common mistakes people make when probating an estate is failing to consider if an alternative to formal probate can be used in lieu of formal probate. For small estates, this may be an option. In Ohio, for example, a small estate alternative to formal probate may be available if:
- The estate is worth less than $5,000 or someone paid funeral and burial expenses of up to $5,000 and is seeking reimbursement.
- The value of the estate is $35,000 or less.
- The value of the state is $100,000 or less and the surviving spouse inherits everything.
- Mismanaging estate assets. Most first-time Executors are not sure what steps need to be taken and when they need to be taken. Consequently, assets are sometimes not handled properly. As the Executor or Personal Representative of an estate, one of the first things you need to do is to secure all assets as soon as possible. This can mean different things depending on the asset in question. For financial accounts, you may just need to close the account, for example, whereas for real property you may need to physically lock up the property and arrange for its maintenance and upkeep. In addition, you will need to create an inventory of all estate assets and then determine which ones are probate assets and which ones are non-probate assets. All probate assets will also need a date of death value assigned to them.
- Going it alone. If the estate qualifies for a small estate alternative to formal probate you may not need the assistance of an attorney; however, if the estate requires formal probate, it is usually a mistake to not retain the services of an experienced estate planning attorney. Hiring an experienced attorney will dramatically reduce the likelihood that you will make costly mistakes during the probate process.
- Making mistakes with notification, approval, or priority claims of creditors. All potential creditors of the estate must receive notice of the probate of the estate. Known creditors can be notified personally; however, unknown creditors must receive notice via publication in a local newspaper. You must then keep the probate open for a statutory period to give creditors the opportunity to file a claim against the estate.
- Failing to calculate gift and estate taxes correctly. All estates are potentially subject to federal gift and estate taxes. Failing to properly calculate estate taxes can be a costly mistake. Estate tax returns must also be filed on by the Executor on behalf of the estate. This is yet another reason to work with an estate planning attorney to prevent making a mistake that could dramatically diminish the value of the estate that is left for beneficiaries. Your attorney can help you properly determine the value of the estate subject to probate, calculate any tax due, and explain how to file the appropriate return and pay the tax bill.
Contact a Loveland Probate Attorney
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about probating an estate, contact an experienced Loveland probate attorney at Zimmer Law Office by calling 513-721-1513 to schedule your appointment today.