PROBATE PRACTICE

Anderson & Burgett is a firm with experienced probate attorneys. Probate includes decedents' estates, trusts, guardianship of minors, and guardianship of the person and conservatorship of the estate of adults who are unable to provide for their personal needs or manage their financial resources.

GUARDIANSHIPS AND CONSERVATORSHIPS

The attorneys of Anderson & Burgett are experienced with guardianships and conservatorships. Because each of these situations are just as unique as the person involved, it is best to make an appointment to speak with one of the attorneys regarding any potential guardianship or conservatorship.

To begin a guardianship or conservatorship, a Petition for Appointment must be filed. This Petition includes the essential information regarding the ward, interested parties including spouse, children, siblings, and administrator of the facility which the ward may reside. Once the Court receives the initial papers, a hearing date will be set at which anyone who objects to the guardian/conservator's appointment may object and the Court will review the Petition. If no one objects and the Court feels it is the best interest of the ward, the guardian/conservator is appointed.

After the guardian/conservator is appointed, within six months, a beginning Inventory of all the ward's assets must be listed. On an annual basis, an Annual Account must be filed with the Court showing the income and disbursements of the ward. When the ward dies, is emancipated, or is declared competent, a Final Account must be filed and the guardian/conservator is discharged.

PROBATE OF DECEDENT'S ESTATE

When someone dies, a probate of the decedent's estate may be necessary. The status of the ownership of the assets of the decedent determines if a court supervised probate of the estate is necessary. The attorneys at Anderson & Burgett will be able to advise you if a probate is necessary.

If a probate is necessary, a Petition to appoint the personal representative (executor) is completed. This Petition includes the essential information regarding the decedent, all the heirs and devisees, information regarding the Will, if any, and an estimate of the assets of the estate. Once the Court receives the initial papers, a hearing date will be set at which anyone who objects to the personal representative's appointment or the admission of the decedent's Willmay object. If no one objects, the personal representative will likely be appointed. Estates are usually open for not longer than twelve months.

The following information identifies the steps to complete the probate.

LETTERS OF APPOINTMENT

After the initial court hearing, the personal representative will receive certified copies of Letters. These Letters are evidence of the personal representative's authority to act on behalf of the estate. The personal representative should have his/her Letters with him/her whenever transacting business for the estate. Additional certified copies may be obtained from the court at a charge of $10 each, if necessary.

COLLECTION OF ASSETS

The personal representative's first duty is to collect and assist our firm in obtaining values for all assets of the estate. The personal representative should notify Anderson & Burgett if the personal representative has any trouble obtaining possession of any asset. Based on the information received, Anderson & Burgett will prepare the required Inventory which will be filed with the court. Please be sure to let Anderson & Burgett know if any additional assets are discovered or any new information regarding the market value of any assets is discovered.

DEBTS

Claims against the estate may be sent directly to the personal representative, to the court, or to Anderson & Burgett. It is necessary for the personal representative to report all claims and bills which the personal representative receives to Anderson & Burgett. Claims which are legitimate are paid. Those the personal representative feel should not be paid, either in whole or in part, may be disallowed under certain circumstances.

TAXES

The personal representative is required to submit timely tax returns. Penalties and interest are incurred for late filings; therefore, we urge you to contact this office concerning the following:

1. Final Individual Federal and State Income Tax Returns of the Decedent. A timely return is due for that portion of the year prior to the date of death. If the decedent had been filing a joint return, the joint filer may continue to file, incorporating the decedent's share for the portion of the year prior to the date of death.

2. Annual Federal and State Income Tax Returns of the Estate (Fiduciary Returns). The estate is responsible for filing returns for any income earned by the estate over $600.00. The estate also has the option of choosing the fiscal year following the date of death (not to exceed 12 months from the date of death).

3. Federal Estate Tax Returns (Form 706) and State Estate Tax Returns. For estates valued at $1,000,000 or more, returns are due nine months after the date of death.

4. Jointly Owned Property. The surviving joint tenant is entitled to the income from jointly owned property after the date of death and is also required to report and pay income tax on that income. The information returns (such as 1099 forms) will probably come to you, as personal representative, and should be passed along to the surviving joint tenant. In the case of jointly owned real estate, an Affidavit of Survivorship must be prepared and recorded along with a certified copy of the death certificate.

5. Real Estate Taxes. Real estate taxes must be timely paid.

a. for taxable year to the date of death for the decedent;

b. receipts on sales made before the date of death and received by the estate or others after the date of death;

c. receipts and expenses of the estate after the date of death.

DISTRIBUTION

The personal representative is responsible for distribution of the estate assets to the proper persons or organizations, as set by law or as designated in the decendent's Last Will and Testament, if any. For your own protection, no distribution should be made without prior discussion with this office.

INSURANCE

Be sure there is adequate insurance coverage on property to cover fire, theft, liability, etc., and that all premiums are kept current during the probate administration or until such property is sold or otherwise disposed of out of the estate.

ESTATE CHECKING AND BOOKKEEPING

An estate checking account should be opened as soon as Letters are received.

1. Deposits. All funds received by the estate are deposited into this account. If some of the funds are not needed, a transfer to an estate savings account may be made. Each deposit should show each individual item and indicate from where the item came and for what purpose; i.e. utilities refund, telephone refund, Medicare, Certificate of Deposit cashed, Contract for Deed principal $ ______________ and interest $______________ . All interest income should be clearly designated.

2. Checks. Duplicate voucher checks (available from the bank and requested when the estate account is opened) should be used for all expenditures or transfers. These checks have a receipt incorporated into the check for use as a receipt for the Final Account. The duplicate will provide a permanent record.

3. Journal. A complete and accurate record of all estate transactions is kept in the probate file.

4. Responsibility. The personal representative is held responsible for the careful and prudent handling of all funds and property of the estate.

5. Family Allowances. The surviving spouse and dependent children have certain rights as to allowances. Check with this office on procedures if personal funds are needed.