After Death (Probate & Trust Administration)
Probate is the legal process in which a deceased person’s debts are paid and estate assets are distributed – either in accordance with a Last Will & Testament, or, if no Will was prepared, in accordance with state law. Some clients are able to settle smaller estates informally, in which case our office can assist with the filing of a “small estate affidavit”.
Kincaid Law Offices, P.C. can advise you regarding whether a formal probate or small estate affidavit is required to administer your loved one’s estate. When settling an estate requires probate, we will guide your family through the process. The probate court will appoint a personal representative (also called an executor or administrator).
A personal representative will:
Gather and Preserve Assets
Settle and Pay
Distribute to Beneficiaries
Consider Tax Implications
of the Estate
It is important to have a close working relationship with your attorney during probate in order to be properly and timely advised about the laws and obligations of probate. A Personal Representative owes a fiduciary duty to the estate, and can be personally liable for breaching the fiduciary duty. It is imperative that you adequately understand the process and relevant court documents, as well as your personal liability, if you agree to accept the position of personal representative.
The probate process is often finished within a year, though issues relating to family disputes, creditors, and other problems can delay the process for much longer. An experienced probate lawyer can expedite the settling of a person’s estate.
The administration of a trust is often a simplified process compared to a probate. However, a trustee is still required to comply with the laws regarding notification to the beneficiaries and creditors, management and distribution of trust assets, and reporting to the trust beneficiaries.
Alex Kincaid Law can advise you regarding the process of properly administering a trust in accordance with Oregon law. Many of the trustee’s duties are similar to the duties of a personal representative in a probate proceeding; however, a trustee ordinarily does not need to file any documents with the court or account to the court for the distribution of the trust (although a trustee must report to the trust beneficiaries). In other words, a trustee still faces potential personal liability for the trustee’s actions, must prepare and execute legal documents within certain time periods, and must comply with state laws pertaining to trust administrations; however, the goal of most trust administrations will be to completely circumvent the court, resulting in an often simplified and expedited estate administration.
Like a probate, it is important to have a close working relationship with your attorney during the trust administration, to be properly and timely advised about the laws and obligations of the trustee. A trustee owes a fiduciary duty to the trust estate, and can also be personally liable for breaching the fiduciary duty. It is imperative that you adequately under the process and relevant trust documents, as well as your personal liability, if you agree to accept the position of trustee.
We would be happy to help you understand the obligations and liability of a trustee, the requirements of complying with state trust laws, and assist you to investigate whether you wish to accept the trusteeship and if so, how to accept and administer the trust.
Please contact us for a consultation.
Contested Probate or Trust Administration
Contested estate proceedings are often contentious and heated matters. The need for reliable and effective representation is crucial, both to strongly pursue your litigation goals and to keep you informed and involved in the proceedings.
Please contact Alex Kincaid Law for assistance with a contested probate or trust administration.