Practice Areas
Probate & Estate Administration

One of the most common questions that we hear is something along the lines of “Can we avoid probate?” In fact, there are pundits who advise structuring one’s assets to avoid probate at all costs. While that may be advisable in some jurisdictions with lengthy wait times to get into court and high fees once you get there, such is not the case in Mississippi, Alabama and Tennessee where we practice regularly. Nonetheless, we recognize that with proper planning, it is possible to transition assets to beneficiaries in an efficient and expeditious manner. We have found that owning assets with a right of survivorship in the case of real estate and bank accounts and having pay on death accounts and beneficiary designations on appropriate accounts are effective means to avoid probate and transfer assets “automatically” to the intended beneficiaries.

In addition, creating a trust and transferring assets to the trust is a highly effective mechanism to carry out one’s wishes without probating a will. Contrary to popular belief, trusts are not merely a tool for the wealthy, but they do require that a client have the capacity to manage assets once they are in a trust. We regularly use trusts to assist clients in all income brackets to achieve their objectives.

The probate procedure requires someone to be appointed to wind up the affairs of the deceased. That person is known as the “personal representative” or alternatively as the “executor” or “administrator” depending on the context. The personal representative is usually nominated by the will and confirmed by the probate court. If there is not a will, the court will appoint someone – usually a spouse or family member – to serve.

The probate process typically requires the following:

1. Notification of interested parties. Most states require disclosure of the estate’s approximate value as well as the names and addresses of interested parties. These include all beneficiaries named in the will, natural heirs and creditors.
2. Appointment of an executor. If you haven’t named an executor, the court will appoint one to oversee the estate’s liquidation and distribution.
3. Accumulation of assets. Essentially, all assets you owned or controlled at the time of your death need to be accounted.
4. Payment of claims. The type and length of notice required to establish a deadline for creditors to file their claims vary by state. If a creditor does not file its claim on time, the claim generally is barred.
5. Filing of tax returns. This includes final income and estate taxes.
6. Distribution of residuary estate. After the estate has paid debts and taxes, the executor can distribute the remaining assets to the beneficiaries and close the estate.

The personal representative is responsible for collecting the assets of the estate, paying the just debts of the deceased, filing tax returns for the deceased and for the estate, and managing and even selling property when necessary. After the personal representative has settled all claims, expenses and taxes, the remaining assets are distributed to the heirs. A large part of the personal representative’s job is recordkeeping to show both the court and the heirs that the estate has been properly administered. Once the court has been satisfied that the administration was proper and complete, the court will close the estate and discharge the personal representative from further duties and obligations.