When devising an estate plan, we will first email you a client information form for you to complete and bring to your initial session to help you determine: (1) what assets you have; (2) which assets will pass through probate and which assets will pass through beneficiary designation or joint ownership; (3) whom you wish to share in your estate; and (4) whom you want to manage your estate when you pass.  If you have minor children you also need to decide whom you want to take care of your children and whom you would want to take care of your children’s money.  Also, you need to consider whom you would want to handle your finances if you become incapacitated and whom you would want to make health care decisions if you could no longer could do so.  We will also help you determine if a revocable trust would be a better fit for your situation.

Generally there is an initial visit in person, or via telephone or Zoom to discuss these matters, the documents are then drafted and mailed, and the client returns to our office for a second visit to sign the documents.

Probate is the process through which assets which belong to a deceased person are transferred to the beneficiaries of the estate, either pursuant to a will or pursuant to the law of intestate succession. (The law of intestate succession determines to whom your estate passes if you die without a will. Typically, if you do not have a will your estate will pass to immediate family members.). The word “probate” comes from a Latin word meaning to “prove”. In the old days, it was necessary to prove to the court that the will was valid, and witnesses would have to come to court to give testimony about the will. In modern times, the process is quasi-administrative, that is, typically the court is just approving routine actions.

Once assets are titled to a revocable trust and the settlor (the person who created the trust) dies or becomes incapacitated, the successor trustee is required to administer the trust. There are required notices that must be sent to the immediate and “qualified” beneficiaries of the trust. Qualified beneficiaries are those beneficiaries who would receive the trust assets or income if the immediate beneficiaries pass away. Beneficiaries also need to be kept informed of the financial activities of the trust. The income tax treatment of trusts is extremely complicated, and we work with Certified Public Accountants who can assist a trustee in ensuring that these matters are handled correctly.

If an individual is found to be incapacitated, the court will appoint a guardian for that individual. The guardian makes health care and lifestyle decisions for the subject. A conservator manages the assets of the subject. In Maryland, a conservator is called a “guardian of the property.” In both D.C. and Maryland, to establish guardianship and conservatorship for an individual, a petition has to be filed and proof has to be presented to the court that the individual is in fact incapacitated. Our office can assist individuals who are petitioning to become guardian and conservator for loved ones and also assist those who are already appointed in the burdensome court reports that must be periodically filed.

Most probate cases proceed via a process known as “administrative probate,” which requires very little court involvement. If there is a will, the original will is filed with the court. If there is no will, then it is recommended that immediate family members agree on who the personal representative (what used to be called executor) should be. This will relieve the requirement for a bond. If there is no agreement as to who the personal representative should be, the personal representative has to serve with a bond. If there is no will, then the decedent’s “heirs at law”, or nearest family members, share in the estate.

To begin the estate, the interested person files a “Petition for Probate” with the Superior Court of the District of Columbia. The petition is acted on without appearing in front of a judge, and the petitioner is appointed personal representative of the estate.

The personal representative is then required to publish notice of the probate proceeding in two different newspapers. The court handles the mechanics of the publication. Publication of the notice gives any unknown heirs and creditors notice that they must file a claim in the estate within six months of the date of the first publication. This is known as the “claims period”. The personal representative is also required to send a special notice package to the heirs at law (those who receive if there is no will), those who are named in the will (known as “legatees”), and creditors of the estate.

Once the personal representative is appointed, he or she is entitled to manage the decedent’s assets and pay the debts of the decedent. The personal representative can also sell the decedent’s assets, but they generally keep the proceeds in the estate. It is recommended to keep the estate intact for the duration of the claims period, which is roughly six months after appointment. The personal representative can make preliminary distributions during this period if they are confident the estate is not insolvent.

The personal representative must keep the other interested persons informed of the financial dealings of the estate. They must provide the interested persons with an inventory - a report of what the decedent’s assets were at the time of their death. They also must provide an accounting of the income, expenses, and distributions of the estate at the end of the estate administration.

Typically, our office fills out the paperwork for the petitioner. The petitioner signs the documents, and we bring their package to the court. If the petition is very straightforward, we hope the personal representative will be appointed within two months. We have handled many estates for individuals via postal mail and email, so our client’s physical presence in the District of Columbia is not required.

“Modified Administration” is available in Maryland if all the beneficiaries consent and there are no inheritance taxes due. Under modified administration, the personal representative only has to file what is supposed to be an informal report with the Register of Wills’ Office at the end of the estate administration. Otherwise, inventories and accountings still have to be filed with the court.