ESTATE SETTLEMENT BASICS

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1 ESTATE SETTLEMENT BASICS by Steven D. Beres Florida Bar Board Certified Wills, Trusts & Estates Lawyer The steps necessary to properly settle an estate upon the death of a family member or friend vary greatly and depend upon the assets in which the deceased person ( decedent") had an interest, the value of those assets, and the terms of the decedent s will. The purpose of this memorandum is to provide an overview of the steps necessary to settle an estate. Assets Subject to Probate The Probate Estate The term probate estate or estate refers to those assets which are subject to administration in the court-supervised probate proceeding. The probate estate includes only assets which are titled in the decedent s individual name at death. The probate estate does not include assets which are titled in the name of a revocable trust, assets titled in joint names with another person subject to a right of survivorship, or assets such as life insurance, annuities and IRAs which are subject to a beneficiary designation appointing the item to a living beneficiary other than the estate. The Estate is a Separate Entity for Legal and Tax Purposes The probate estate becomes a legal entity upon the entry of the probate court s orders opening the estate. If the decedent leaves no assets requiring probate, no estate will be opened, and no such legal entity is created. Even if no probate is required, however, the person holding the original will is required to place the will on deposit with the court so that it will be available should probate assets later be discovered. The probate estate is also a separate entity for tax purposes. Usually, a tax identification number is requested and issued to the estate, although in some cases this may not be required. The Will Governs Disposition of the Probate Estate The will is the document which determines how the assets of the probate estate are distributed. Florida law requires that all taxes, expenses of administration and claims be paid first. After payment of such items, however, all remaining assets will be distributed according to the terms of the will. In the absence of a will, the assets of the decedent s probate estate pass according to the Florida intestacy laws, which provide for distribution of the residue of the estate to various family members. The Personal Representative The personal representative is the fiduciary responsible for administration of the probate estate. The personal representative is nominated by the will, but has no authority to act on behalf

2 of the estate until the will is admitted to probate and the personal representative is authorized to act by the court. The personal representative s authority to act on behalf of the estate is evidenced by letters of administration issued by the court. In general, the duties of the personal representative include (i) gathering, protecting, and accounting for the assets of the probate estate, (ii) paying valid debts, expenses and taxes of the estate, and (iii) distributing the assets of the probate estate to the persons or entity entitled to them. To gain access to the assets of the estate, it is generally necessary for the personal representative to provide certified copies of the letters of administration to the institution with control of the particular asset, together with appropriate instructions and any forms required by that institution. For instance, a bank account in the decedent s sole name might be closed by a written request of the personal representative which includes a certified copy of the letters of administration. The personal representative is entitled to a fee for services rendered to the estate. By Florida Statute, the personal representative s fee is based on the value of the probate estate as finally determined for probate inventory purposes (plus all income earned on assets of the probate estate during administration) and computed as follows: At the rate of 3% for the first $1 million. At the rate of 2.5% for the next $4 million. At the rate of 2% for the next $5 million. At the rate of 1.5% for all above $10 million. If the value of the probate estate is $100,000 or more and there are two personal representatives, each is entitled to a full fee; if there are more than three personal representatives the total fee to which two would be entitled is to be divided among the personal representatives. If the value of the probate estate is less than $100,000 and there is more than one personal representative, the fee to which a single personal representative would be entitled is to be divided among the personal representatives. The personal representative may waive the fee, if they desire to do so. Any fee taken by a personal representative is deductible by the estate for federal estate tax purposes (if the estate is taxable as discussed further below) and is taxable to the personal representative for income tax purposes. The Probate Process, in Brief Probate proceedings are administered within the probate division of the circuit court, and representation by an attorney is required. The two most common forms of probate are summary administration and formal administration. Summary administration is a simplified form of administration which may be used where the value of the assets subject to probate does not exceed $75,000 or, alternatively, where the decedent has been dead over 2 years. In summary administration, one petition is filed with the court, and the court completes the proceeding by entering an order directing to whom the various assets of the estate are to be distributed. No personal representative is appointed by the court in summary administration. Where the estate does not qualify for summary administration, formal administration may be used. 2

3 The steps involved in the "formal administration" of an estate include: (i) proof of the deceased's will and its admission to probate by the court; (ii) entry of letters of administration as described above; (iii) publishing and serving a notice of creditors which advises creditors that they must file their claims against the estate within 3 months; (iv) filing an inventory listing the assets of the probate estate; (v) the personal representative's determination and payment of the deceased's final bills, taxes and expenses of administration; (vi) the filing of a final accounting for the estate; and, finally (vii) distribution of the remaining assets according to the will (or to family members as provided by statute if there is no will). If no complications arise, a simple formal administration can usually be completed in 6 to 8 months. In cases where a federal estate tax return is due, or where there is a will contest or litigation concerning a creditor's claim, administration takes longer to complete; although distribution of most of the estate may occur long before the estate is ready to be formally closed. Once administration is complete, the court enters an order of discharge releasing the personal representative from all further responsibility with regard to the estate. Probate Deadlines The following major deadlines concerning the administration of the estate should be noted: Within 60 days from the issuance of letters of administration... Although no statutory deadline exists, the notice of administration shall be promptly served (usually within 30 days of letters of administration)... Although no statutory deadline exists, the notice to creditors shall be promptly published (usually within 30 days of letters of administration)... Within 3 months from the first publication of the notice to creditors... Within 3 months after service of the notice of administration... The personal representative must file an inventory listing the assets of the estate with the court, and must file a preliminary notice and report estimating the assets of the gross estate for federal estate tax purposes with the Florida Department of Revenue. The personal representative must promptly serve a copy of the notice of administration on the decedent s surviving spouse, beneficiaries of the estate, the trustee of any trust held by the decedent and any person entitled to exempt property. A copy of the notice to creditors should be served on any known creditors in order to close the period for those creditors to file claims as soon as possible. Creditors must file their claims against the estate (provided that this deadline is extended until 30 days after service of the notice on them, if later). Any person served with a copy of the notice of administration must file their objections to the probate of the will or the qualification of the personal representative 3

4 Within 4 months from the first publication of the notice to creditors... Within 6 months of service of the notice of administration or 2 years from death, whichever is earlier... Within 12 months from the issuance of letters of administration... The personal representative or any other person interested in the estate may file an objection to any claim filed against the estate. The surviving spouse must file an election if he or she chooses to take an elective share equal to approximately 30% of the probate estate, rather than the share provided by the will. The pleadings to close the estate are to be filed, unless the court grants an extension of time. This deadline is extended until 12 months after the federal estate tax return is due, however, if an estate tax return is required. Non-Probate Property As already indicated, assets held jointly with right of survivorship, and assets with a designated beneficiary do not pass through probate. Generally, joint assets may be claimed by the surviving joint tenant by presenting a certified copy of the death certificate to the institution where the assets are held. Assets with a named beneficiary may be claimed by the beneficiary by presenting a certified copy of the death certificate to the institution, and completing any required claim forms. Assets held in joint name and assets with designated beneficiaries pass directly to the beneficiary and do not come into the possession of the personal representative. Nonetheless, such property is part of the gross estate for federal estate tax purposes, and may be responsible to pay a portion of the estate tax under some circumstances. Federal Estate Tax Return Taxation If the gross estate for federal estate tax purposes exceeds $5,000,000, it will be necessary for the personal representative to file a federal estate tax return, Form 706. This threshold amount is scheduled to return to $1,000,000 in 2013 based on a sunset provision provided in the Internal Revenue Code. The gross estate includes the value of all assets owned individually by the decedent or the decedent s revocable trust, one-half of the value of assets owned jointly with a surviving spouse, the total value of all assets owned jointly with anyone else or in trust for anyone, and all life insurance, annuity, IRA or pension proceeds. Assets includable on the estate tax return are reported at their fair market values as of the date of the decedent s death. The estate has the option, however, of valuing the assets of the estate as of the date 6 months after the date of death (the alternate valuation date ), if the value of the assets has declined by that date. If alternate valuation is elected, any assets sold during the first 6 months are valued at their sales prices. For assets such as real property, personal effects and closely held business interests, appraisals will be required to determine fair market value as of the date of death or the alternate valuation date. 4

5 The federal estate tax return, and any tax shown on the return, is due 9 months from the date of death, unless an extension is granted. While extensions of the time for filing the return are routinely granted, extensions of the time to pay the tax are rare unless unusual circumstances exist. The will may specify the particular shares or interests which bear the burden of the estate tax. In the absence of a complete direction in those documents, apportionment of some or all of the tax will be determined by statute. Where the statute applies, it generally provides that the tax is to be apportioned against those interests which caused the tax to be due. As a result, property interests passing to a surviving spouse or to charity (which qualifies for a deduction and therefore causes no tax) usually do not bear any portion of the tax. Federal Gift Tax Returns If the decedent made any gifts in the year of death, or the prior year, of more than $13,000 to any individual, it will be necessary to file a federal gift tax return, Form 709, reporting those gifts. Such returns would be filed by April 15 of the year following the year in which the gifts were made, or together with the estate tax return, if the estate tax return is due before that date. Decedent s Final Returns It may be necessary to file a final federal income tax return, Form 1040, for the period from January 1 of the year of death through the date of death, if the amount of income earned by the decedent during that period warrants such a return. If due, that return would be due by April 15 of the year following the year of death, unless extended. In addition, if the decedent died between January 1 and April 15, or if his return for the prior year was under extension, it may be necessary to file a federal income tax return for the year preceding the year of death. If the decedent leaves a surviving spouse, one or more of the above returns may be filed jointly with the surviving spouse. Fiduciary Tax Returns The estate will be required to file a federal income tax return, Form 1041, for each taxable year in which the estate has gross income of $600 or more. In filing its first return, an estate may choose a calendar year or any fiscal year it chooses. You should consult your income tax advisor concerning the choice of an appropriate taxable year. The first return will cover the period beginning with the date of death and ending with the end of the chosen tax year. The return must be filed on or before the 15th day of the 4th month following the close of the tax year, unless extended. If deductions exceed income in the final year of the estate, it may be advisable to file an income tax return (even though a return may not be required based on the gross income of the estate) in order to pass through the excess deductions to the beneficiaries for use on their personal returns. 5

6 Disclaimers A disclaimer is the refusal to accept property which would otherwise pass to a beneficiary. In the event of a disclaimer, the disclaimed interest passes as if the disclaiming beneficiary had predeceased the decedent, and is distributed to the alternate beneficiary named in the will. Interests in property created other than by a will may also be disclaimed in many cases. Further, a disclaimer may relate to all or a part of a beneficiary s interest in property. If a disclaimer is made within 9 months of the transfer creating the interest, and in the manner required by the Internal Revenue Code, the distribution of the disclaimed interest to the alternate beneficiary will not be considered to be a transfer from the disclaiming beneficiary to the alternate beneficiary for federal gift tax purposes. In the case of transfers made under a will, that 9 month deadline begins to run on the death of the decedent. To illustrate, assume that a will provides that upon the decedent s death, the assets of the estate are to be distributed to son, and if son is not living to daughter. If son were to receive the entire estate and give daughter one-half of the estate, he would make a taxable gift to sister (thereby consuming a portion of his unified credit which allows a limited amount of tax-free transfers). On the other hand, if son were to disclaim one-half of his beneficial interest in the estate, that portion of the estate would pass to daughter without any tax cost to son. If son has a substantial estate, the tax savings which are achieved could be as much as 45% of the amount disclaimed under current tax rates. If a beneficiary suspects that a disclaimer might be appropriate, he or she should refrain from accepting any portion of the interest which might be disclaimed, and should immediately seek tax advice concerning the possible disclaimer Steven D. Beres. All Rights Reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matters covered. It is published with the understanding that in this publication the author is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. (From a Declaration of Principles jointly adopted by a committee of the American Bar Association and a committee of Publishers and Associations.) Last revised: February 23,

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