Estate Planning & Asset Protection
Book an Initial VisitWhen a client passes away, we work with their family and trusted advisors to administer their estate. This part of our practice is bittersweet—a beloved family member has passed away; however, we are pleased to be able to help the family and loved ones implement the plan we helped the client create.
For deaths where the decedent was not our client, we can help with estate administration. If a family member passed away and the estate has some complexities (i.e. the estate is subject to estate tax, the surviving spouse needs to port the deceased spouse’s unused exclusion via a 706 filing, an heir with special needs is inheriting or some other complex issue), we are equipped to help.
Estate administration may include going to probate court, which many lawyers are familiar with. However, for many of our clients, estate administration also includes preparing and filing IRS Form 706-the estate tax return. Many attorneys who are familiar with probate have no experience with portability or IRS Form 706.
We are a law firm and do not prepare income tax returns; however, we are skilled at preparing estate tax returns. This type of tax return is extremely detailed and must be submitted with evidence verifying the value of every asset. Many CPAs do not have experience preparing the estate tax return and are pleased to work with us collaboratively to ensure our clients’ filing is complete and accurate.
For clients who own businesses or whose estates are subject to estate tax, IRS Form 706 is due within 9 months of the date of death. We are experienced with these filings and can help ensure they are done accurately with all the detail required.
Unfortunately, some families come face to face with litigation involving a dispute over a will, trust, property transfer or beneficiary designation. When a client is faced with either defending or litigating a tough estate matter, we believe the best litigation team consists of (i) a board certified estate planning and probate law attorney who understands the nuances of estate matters; and (ii) a forceful trial lawyer who stands ready to go to court no matter who is on the other side.
When our clients are faced with estate litigation, we co-counsel with a board certified civil trial attorney and team. Knowing your litigation team has the experience to either settle your matter or take it all the way through trial brings some peace to a very difficult situation.
A personal representative is required to prepare and file an inventory and a list of claims after the representative is approved by the court. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary. The claims include debts due and owing to the estate (not debts the estate owes to another party). The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. [Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.] If the inventory is filed late, the representative could be fined and removed, which would slow down the process (and raise tempers).
One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the representative must also keep the administration process moving along by settling all of the decedent’s debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper and sending written notice to known secured creditors by certified mail. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good. Some states provide “permissive notice” to unsecured creditors and this may avoid paying some unsecured claims.
The representative must keep the beneficiaries in the loop, to include providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting by the independent executor.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is able to sell any property that is perishable or would deteriorate in value during the Texas probate process.
As you can see, being a representative is a big, big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement in the role of representative. The representative may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with many other details.
