Fellow blawger Martha Hartney, Esq. of Colorado wrote a post this week called “Probate? What’s the Big Deal?”. She relates how one of her colleagues indicated that “Probate is easy in Colorado. Any attorney who recommends a trust-based plan is practically committing malpractice.” Similar claims are being made in different states as well, including Virginia.
I am no expert of Colorado law, but a quick glance of its state statute reveals that its “easy” probate procedure consists of a mere 146 sections (starting at Section 15-12-101). The Virginia Code’s comparable chapter contains only 82 sections. If Colorado probate is easy, then Virginia probate must be as easy as shepherd’s pie.
Or is probate more of a wolf in sheep’s clothing? Let’s list Virginia’s probate requirements, stated with much greater depth in “A Guide to the Administration of Decedent’s Estates in Virginia” and an excellent series of ten posts explaining the basics of probate (Part I linked here) by fellow Virginia estate planning attorney Christopher Guest, Esq.:
- Get certified death certificate
- Find original will
- Call County Clerk for appointment
- Take will and death certificate to Clerk’s Office
- If will is not self-proven, bring sworn witness statement or witnesses in person
- Fill out “Probate Information Form” or “Memorandum of Facts – Probate”
- Fill out “Probate Tax Return” and pay probate tax
- Fill out “List of Heirs”
- Unless will waives requirement, provide insurance on the personal representative’s (“PR”) bond
- PR sworn in, and receives “certificate of qualification”
- PR must file for estate federal ID number
- Within 30 days of qualification, PR sends written notice to beneficiaries indicating probate, qualification, and entitlement to copies of the will, accounts and other reports (if probate assets exceed $5,000)
- PR requests Commissioner of Accounts (“Commissioner”) to set time and place for Debt and Demands hearing for creditors to file claims against estate. Commissioner publishes notice in newspaper and at courthouse.
- PR must notify creditors of any disputes of their claims
- At Debt and Demands hearing, Commissioner makes report of proven debts
- Within 4 months of qualification, PR must record affidavit indicating where notice sent
- Within 4 months of qualification, PR must file with Commissioner of Accounts an inventory of all assets owned by decedent
- Within 6 months of qualification, surviving spouse must opt for elective share
- After 6 months of qualification, if accounting and Commissioner’s report from Debt and Demands hearing filed with clerk, PR can request Commissioner to set time and place for Show Cause hearing. Commissioner publishes notice in newspaper and at courthouse.
- If no objections at Show Cause hearing, Order of Distribution issued by Commissioner
- Within 9 months of the date of death, file estate tax return
- Within 12 months of qualification, PR must pay surviving spouse and/or minor children the family allowance, if elected.
- Within 12 months of qualification, PR must pay surviving spouse or minor children (if spouse doesn’t survive) exempt property allowance, if elected.
- Within 12 months of qualification, PR must pay surviving spouse or minor children (if spouse doesn’t survive) homestead allowance if elected (only allowed if selected instead of share given in will)
- Within 16 months of qualification, PR must file annual accounting of estate with Commissioner
- Distribute property to beneficiaries and pay PR if allowed in will
- Estate closed
By the way, this does not include:
- Filing decedent’s final federal and state income tax returns
- Filing federal and state fiduciary returns, and federal gift tax return
- Filing estate tax returns if required or to preserve portability of estate tax exemption. This includes the calculation of the “gross estate”, which differs from “probate estate” calculated earlier.
I do not know whether Colorado’s procedures are more complicated. However, do the above steps look like a piece of cake? Or should we consider that an attorney helping clients try to avoid probate is perhaps the absolute polar opposite of malpractice (emphasis gladly added)?
- What’s Involved in Serving as Executor? (ncestateplanningblog.com)
- What the heck is “bond in lieu of probate”? (deathandtaxesblog.com)
- Probate Creditor Deadlines Are Important (bonasera.org)