REDUCING THE DELAYS OF A DISTRICT OF COLUMBIA PROBATE

1. AN INTRODUCTION TO THE PROBATE PROCESS

When a person dies, a Personal Representative is responsible for administering the estate: filing the appropriate documents with the Court, paying taxes and creditors and, finally, distributing the money and property as directed under a Will or by law. The Personal Representative is authorized to act by Letters of Administration issued by the Court.

This brochure discusses a new unsupervised probate proceeding which can shorten and simplify the administrative process.

2. A CONCERN ABOUT THE PROBATE PROCESS DELAY

For survivors, the death of a provider may be a financial as well as a personal disaster. If the Court must supervise the Personal Representative's administration of the estate, funds and other assets may not be available for months or even years.

3. THE ADVANTAGES OF UNSUPERVISED PROBATE FOR HEIRS AND LEGATEES

The District of Columbia permits the unsupervised administration of an estate of a person who dies on or after July 1, 1995, unless there is objection.

For estates with a value in excess of $15,000, the significant advantages of unsupervised probate is that it reduces delay of finalization and distribution by eliminating audit and accounting review by the Court.

Unsupervised administration does not mean: (1) that the administration requires no observance of applicable law by the Personal Representative; (2) that the Clerk or Court will instruct the Personal Representative as to all of the applicable law, or; (3) that an attorney need not be consulted.

4. WHAT ESTATES ARE ELIGIBLE FOR UNSUPERVISED PROBATE?

The Court has broad discretion to grant a petition for unsupervised probate, even against the decedent's wishes. Unless there is an objection, most Personal Representatives will be automatically appointed to administer the estate without the supervision of the Court, if they request it.

Factors which could cause the Court to temporarily or permanently supervise the probate process include: objections to the conduct of the Personal Representative; an interested person's desire to have the Court review the distribution of property; objections to legal fees or other serious concerns about the administration; or a request by the Register of Wills.

5. THE PERSONAL REPRESENTATIVE'S DUTIES IN AN UNSUPERVISED PROBATE PROCEEDING

Despite the fact that unsupervised administration will often be available to a Personal Representative, a few caveats are in order.

First, "unsupervised" does not mean that the Court makes no demands of the Personal Representative. In fact, as a fiduciary, a Personal Representative is held to high standards of conduct and, in some instances, may incur personal liability for wrongful acts committed as a Personal Representative.

Second, the unsupervised administration of an estate requires time and attention. While many of the documents which must be prepared need not be filed with the Probate Court, copies of prepared documents must in most instances be given to interested persons, and specific filing deadlines of the Court and the tax authorities must be met. Careful accounting records should be kept in the event of any challenges or an audit brought on with a conversion to supervised status.

6. ANSWERS TO OFTEN ASKED QUESTIONS

What if I find two different Wills in the Decedent's papers?

Usually the last Will in time will be the controlling Will. If, however, the last Will does not revoke prior Wills, a Court may have to decide what the decedent intended.

The surviving family needs money from the estate now to keep things going can the Personal Representative give them money right away?

Yes. District of Columbia law permits an immediate "family allowance" disbursal from estate funds of up to $10,000 to a spouse, children and parents. Joint accounts may be used by the surviving joint owners without any limitation.

The Decedent told Uncle Harry that he could have thefamily china must the Personal Representative give the china to Uncle Harry?

No. A properly executed and acknowledged Will is the preferred means by which to leave bequests of property. The Decedent's oral statements generally are not binding on the estate or the Personal Representative.

How soon may I distribute the assets and close the estate?

Before distributing anything you should determine the debt and tax liability of the estate. If the estate is solvent, you may make partial or full distributions at any time. However, it is suggested that full distribution be made only after the time to submit claims has passed (i.e., 6 months from the date of first publication of the Notice of Appointment).

Must a Personal Representative convey real property held by the decedent with a surviving interest?

No, but the Personal Representative must convey by deed any real estate interest held by a decedent when there is no survivorship. Even when the deed provides survivorship, it is often a good idea to have the Personal Representative convey a new deed to clarify the record title.

Do I need a lawyer to help me with the administration of the estate?

Though the unsupervised probate of a simple estate may be handled by a Personal Representative without a lawyer, it does not follow that the unsupervised probate process is legally simplified. We recommend that an attorney assist the Personal Representative in preparing court papers, estate tax returns and administering the estate.

(Paul D. Pearlstein & Associates is a general practice law firm concentrating in probate, estate planning, elder law, bankruptcy, real estate and civil litigation.)