Probate costs?--I am the sole heir and the executor

Non-investing personal finance issues including insurance, credit, real estate, taxes, employment and legal issues such as trusts and wills
johnnyc321
Posts: 99
Joined: Wed Jan 04, 2017 9:24 pm

Re: Probate costs?--I am the sole heir and the executor

Post by johnnyc321 »

Gill wrote: Sun May 19, 2019 1:16 pm
johnnyc321 wrote: Sat May 18, 2019 7:18 pm In Florida, you can run a summary administration without a lawyer if you are the sole beneficiary. Otherwise a lawyer is required because the personal representative/petitioner is representing the interests of other persons/entities and would therefore be practicing law without a license. There is case law on this exact point.
Really? Never heard this and am curious how this is considered unauthorized practice of law. Do you have a citation?
Gill
https://www.leagle.com/decision/20071553947so2d60611274

This case deals with trustees but it’s the same analysis for personal representatives.
Gill
Posts: 6966
Joined: Sun Mar 04, 2007 8:38 pm
Location: Florida

Re: Probate costs?--I am the sole heir and the executor

Post by Gill »

johnnyc321 wrote: Sun May 19, 2019 10:38 pm
Gill wrote: Sun May 19, 2019 1:16 pm
johnnyc321 wrote: Sat May 18, 2019 7:18 pm In Florida, you can run a summary administration without a lawyer if you are the sole beneficiary. Otherwise a lawyer is required because the personal representative/petitioner is representing the interests of other persons/entities and would therefore be practicing law without a license. There is case law on this exact point.
Really? Never heard this and am curious how this is considered unauthorized practice of law. Do you have a citation?
Gill
https://www.leagle.com/decision/20071553947so2d60611274

This case deals with trustees but it’s the same analysis for personal representatives.
This case doesn’t stand for the proposition you stated. The trustee was representing the trust on appeal. That has nothing to do with a small estate administration.
Gill
Cost basis is redundant. One has a basis in an investment | One advises and gives advice | One should follow the principle of investing one's principal
User avatar
bengal22
Posts: 1919
Joined: Sat Dec 03, 2011 6:20 pm
Location: Ohio

Re: Probate costs?--I am the sole heir and the executor

Post by bengal22 »

FIREchief wrote: Sat May 18, 2019 5:31 pm
bengal22 wrote: Sat May 18, 2019 2:38 pm I guess that is why I could do a probate myself. We dealt with beneficiaries, appraised the estate, sold the real estate, and determined no tax filings were required. My only point in all this is that one needs to know what is really required for probate and determine if you do indeed need a lawyer. It's not because we were cheap but instead of spending 5k for a lawyer we did it ourself. It was stupid easy. But at least don't fall for all of the fake legal mystque invest a little time and study up.
Good points.

Please explain what was involved when you "appraised the estate." I understand the need to appraise real estate and similar assets for documenting stepped up basis and perhaps determining if federal or state estate taxes will be payable. I also understand the need to appraise things like collectables in order to have a basis for equitable distribution among multiple heirs. Were there other aspects to this?

I appreciate bsteiner's comments from time to time suggesting that a good estate lawyer will prepare needed estate tax returns themselves. That said, I believe that in many cases there is clearly no need for estate tax returns (due to size of the initial estate, no expected need to elect portability for a surviving spouse, etc.). If the remainder of the estate is very simple, I'm tending to agree with other posters that the need for high priced legal help in such a scenario may be questionable.

We recently liquidated our house and downsized to an apartment (see related forum thread for explanation). As empty nesters, we had little need for the liabilities of a house and saw great opportunity in getting rid of all the clutter before it ultimately became our heirs' job. A nice side benefit is that estate planning has now become dirt simple. Upon our ultimate demise, other than selling a vehicle, paying a cremation place and settling up with our landlord there may not be much else to do. I think cable and electric just turn off service one month after non-payment. I also believe that POD HSA beneficiaries can pay final medical bills tax free. This is assuming that the insurance companies even bother to track them down.
As far as "appraising the estate" one if the things that Ohio requires is that an inventory of assets be filed. In my FIL case the only assets he had was a house, a car, and stocks. His other assets had designated beneficiaries which was distributed outside of probate. The car and house were sold and that value was on the inventory to be distributed. A special form was submitted to sell car. Court gave us immediate approval to sell. FIL did not have to file personal tax. There was no estate tax because it was below threshold, and there was no estate income tax because the estate did not earn enough while it was active. It helped that the 3 daughters got along and easily divided up personal belongings and proceeds.The only costs was about $200 for court filings. There was no legal or executor fees charged. The stock was divided up by shares so that we did not have to file estate income tax if appreciated exceeded $500 income threshold. It did help that county seat was a small town and so they were helpful and patient with us.
"Earn All You Can; Give All You Can; Save All You Can." .... John Wesley
WhyNotUs
Posts: 1813
Joined: Sun Apr 14, 2013 11:38 am

Re: Probate costs?--I am the sole heir and the executor

Post by WhyNotUs »

An immediate action to keep moving forward while you look for an hourly fee based attorney would be to establish an hourly fee with the drafting attorney and have them file the will or to pay them for work to date and file it yourself. As others note, if you hire an hourly atty, then you can negotiate what tasks you will perform and what you are asking them to do.

I have served as executor four times so far but only one had significant assets and tax issues. I hired an attorney and accountant but still did much of it myself to maximize benefits to the heirs (not me). The attorney was of modest value, in that case, but their knowledge of the process and NY paperwork was helpful. The accountant was very helpful as I wanted to document the basis of assets in the best manner for heirs and had to file fed and state estate and personal federal and state taxes. They did a lot to support the interests of the heirs without them ever knowing.
I own the next hot stock- VTSAX
johnnyc321
Posts: 99
Joined: Wed Jan 04, 2017 9:24 pm

Re: Probate costs?--I am the sole heir and the executor

Post by johnnyc321 »

Gill wrote: Mon May 20, 2019 6:05 am
johnnyc321 wrote: Sun May 19, 2019 10:38 pm
Gill wrote: Sun May 19, 2019 1:16 pm
johnnyc321 wrote: Sat May 18, 2019 7:18 pm In Florida, you can run a summary administration without a lawyer if you are the sole beneficiary. Otherwise a lawyer is required because the personal representative/petitioner is representing the interests of other persons/entities and would therefore be practicing law without a license. There is case law on this exact point.
Really? Never heard this and am curious how this is considered unauthorized practice of law. Do you have a citation?
Gill
https://www.leagle.com/decision/20071553947so2d60611274

This case deals with trustees but it’s the same analysis for personal representatives.
This case doesn’t stand for the proposition you stated. The trustee was representing the trust on appeal. That has nothing to do with a small estate administration.
Gill
The concept is the same. A PR, trustee, and guardian cannot file pleadings in court without an attorney because they represent the interests of third parties. There are some exceptions like when the petitioner is the sole interested person, which is rare because how is the judge supposed to know there are no creditors? Guardian Advocates may also proceed without counsel upon approval of the court.
User avatar
FIREchief
Posts: 5856
Joined: Fri Aug 19, 2016 6:40 pm

Re: Probate costs?--I am the sole heir and the executor

Post by FIREchief »

johnnyc321 wrote: Mon May 20, 2019 8:52 am
Gill wrote: Mon May 20, 2019 6:05 am
johnnyc321 wrote: Sun May 19, 2019 10:38 pm
Gill wrote: Sun May 19, 2019 1:16 pm
johnnyc321 wrote: Sat May 18, 2019 7:18 pm In Florida, you can run a summary administration without a lawyer if you are the sole beneficiary. Otherwise a lawyer is required because the personal representative/petitioner is representing the interests of other persons/entities and would therefore be practicing law without a license. There is case law on this exact point.
Really? Never heard this and am curious how this is considered unauthorized practice of law. Do you have a citation?
Gill
https://www.leagle.com/decision/20071553947so2d60611274

This case deals with trustees but it’s the same analysis for personal representatives.
This case doesn’t stand for the proposition you stated. The trustee was representing the trust on appeal. That has nothing to do with a small estate administration.
Gill
The concept is the same. A PR, trustee, and guardian cannot file pleadings in court without an attorney because they represent the interests of third parties. There are some exceptions like when the petitioner is the sole interested person, which is rare because how is the judge supposed to know there are no creditors? Guardian Advocates may also proceed without counsel upon approval of the court.
This is an interesting tangent. I know that the value of living trusts is downplayed on the forum, but I can't help but wonder if they just make this all simpler. If the probate estate is zero, none of this is even a concern.
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.
User avatar
RickBoglehead
Posts: 5608
Joined: Wed Feb 14, 2018 9:10 am
Location: In a house

Re: Probate costs?--I am the sole heir and the executor

Post by RickBoglehead »

FIREchief wrote: Mon May 20, 2019 2:27 pm This is an interesting tangent. I know that the value of living trusts is downplayed on the forum, but I can't help but wonder if they just make this all simpler. If the probate estate is zero, none of this is even a concern.
I share your perspective. My mother has a car outside her trust. No probate planned.
Avid user of forums on variety of interests-financial, home brewing, F-150, PHEV, home repair, etc. Enjoy learning & passing on knowledge. It's PRINCIPAL, not PRINCIPLE. I ADVISE you to seek ADVICE.
User avatar
FIREchief
Posts: 5856
Joined: Fri Aug 19, 2016 6:40 pm

Re: Probate costs?--I am the sole heir and the executor

Post by FIREchief »

RickBoglehead wrote: Mon May 20, 2019 2:33 pm
FIREchief wrote: Mon May 20, 2019 2:27 pm This is an interesting tangent. I know that the value of living trusts is downplayed on the forum, but I can't help but wonder if they just make this all simpler. If the probate estate is zero, none of this is even a concern.
I share your perspective. My mother has a car outside her trust. No probate planned.
Yep. Same here. The only thing we own outside of our trust is a single automobile. I'm planning to change the title to have our trust own that as well. I just need to talk to our insurance agent one more time to make sure that this will work.

I do believe that the probate process has great value in many scenarios. That said, if a person has a simple estate, or can get to a simple estate, I see no value in the probate process. It is a bit of a throw back to the days when people kept everything close to the vest and upon their demise had the dramatic "reading of the will" to find out who gets what and who's in charge of doling it out (maybe that really only existed on TV). I would rather just have a living trust own everything and name the heirs as successor trustees.
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.
johnnyc321
Posts: 99
Joined: Wed Jan 04, 2017 9:24 pm

Re: Probate costs?--I am the sole heir and the executor

Post by johnnyc321 »

RickBoglehead wrote: Mon May 20, 2019 2:33 pm
FIREchief wrote: Mon May 20, 2019 2:27 pm This is an interesting tangent. I know that the value of living trusts is downplayed on the forum, but I can't help but wonder if they just make this all simpler. If the probate estate is zero, none of this is even a concern.
I share your perspective. My mother has a car outside her trust. No probate planned.
I can't speak for states other than Florida but down here you can generally get a car title transferred without a probate. If you take the death certificate and a copy of the will to the tax collector, they will usually transfer the title to the named beneficiary.
Gill
Posts: 6966
Joined: Sun Mar 04, 2007 8:38 pm
Location: Florida

Re: Probate costs?--I am the sole heir and the executor

Post by Gill »

johnnyc321 wrote: Tue May 21, 2019 8:29 am
RickBoglehead wrote: Mon May 20, 2019 2:33 pm
FIREchief wrote: Mon May 20, 2019 2:27 pm This is an interesting tangent. I know that the value of living trusts is downplayed on the forum, but I can't help but wonder if they just make this all simpler. If the probate estate is zero, none of this is even a concern.
I share your perspective. My mother has a car outside her trust. No probate planned.
I can't speak for states other than Florida but down here you can generally get a car title transferred without a probate. If you take the death certificate and a copy of the will to the tax collector, they will usually transfer the title to the named beneficiary.
I believe that only applies with a surviving spouse in which case no will is necessary as it is considered marital property.
Gill
Cost basis is redundant. One has a basis in an investment | One advises and gives advice | One should follow the principle of investing one's principal
bsteiner
Posts: 5404
Joined: Sat Oct 20, 2012 9:39 pm
Location: NYC/NJ/FL

Re: Probate costs?--I am the sole heir and the executor

Post by bsteiner »

FIREchief wrote: Mon May 20, 2019 2:27 pm ... I know that the value of living trusts is downplayed on the forum ...
It's the opposite. They get more attention here than they do in practice. They're appropriate in some cases, and in some states. Where they're appropriate, we do them. Where they're not, we don't mention them.
FIREchief wrote: Mon May 20, 2019 3:24 pm ... It [probating the Will] is a bit of a throw back to the days when people kept everything close to the vest and upon their demise had the dramatic "reading of the will" to find out who gets what and who's in charge of doling it out (maybe that really only existed on TV). ....
That only happens on television and in the movies.
johnnyc321 wrote: Tue May 21, 2019 8:29 am ...
I can't speak for states other than Florida but down here you can generally get a car title transferred without a probate. If you take the death certificate and a copy of the will to the tax collector, they will usually transfer the title to the named beneficiary.
The procedure for transferring a car varies from state to state. In some states, a car (or cars) isn't a probate or administration asset and passes to the surviving spouse or the children or the minor children as exempt property. In New York, the spouse (or the children under 21 if there's no spouse) get one car not exceeding $25,000 in value (or can elect to take a car over $25,000 if he/she/they pay the excess to the estate). In Florida the spouse (or the children if there's no spouse) get two cars. I don't know what the procedure is for doing the transfer.
User avatar
FIREchief
Posts: 5856
Joined: Fri Aug 19, 2016 6:40 pm

Re: Probate costs?--I am the sole heir and the executor

Post by FIREchief »

bsteiner wrote: Tue May 21, 2019 9:40 am
FIREchief wrote: Mon May 20, 2019 3:24 pm ... It [probating the Will] is a bit of a throw back to the days when people kept everything close to the vest and upon their demise had the dramatic "reading of the will" to find out who gets what and who's in charge of doling it out (maybe that really only existed on TV). ....
That only happens on television and in the movies.
LOL. That said, I kid you not, I've actually had the "opportunity" to sit in on one of these in recent years. Everything was a big secret until the big "reading of the will" meeting. All was fine in that one, but I have another one on the horizon that makes me nervous. We'll see.... :annoyed
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.
Lee_WSP
Posts: 3728
Joined: Fri Apr 19, 2019 5:15 pm
Location: Arizona

Re: Probate costs?--I am the sole heir and the executor

Post by Lee_WSP »

johnnyc321 wrote: Mon May 20, 2019 8:52 am
Gill wrote: Mon May 20, 2019 6:05 am
johnnyc321 wrote: Sun May 19, 2019 10:38 pm
Gill wrote: Sun May 19, 2019 1:16 pm
johnnyc321 wrote: Sat May 18, 2019 7:18 pm In Florida, you can run a summary administration without a lawyer if you are the sole beneficiary. Otherwise a lawyer is required because the personal representative/petitioner is representing the interests of other persons/entities and would therefore be practicing law without a license. There is case law on this exact point.
Really? Never heard this and am curious how this is considered unauthorized practice of law. Do you have a citation?
Gill
https://www.leagle.com/decision/20071553947so2d60611274

This case deals with trustees but it’s the same analysis for personal representatives.
This case doesn’t stand for the proposition you stated. The trustee was representing the trust on appeal. That has nothing to do with a small estate administration.
Gill
The concept is the same. A PR, trustee, and guardian cannot file pleadings in court without an attorney because they represent the interests of third parties. There are some exceptions like when the petitioner is the sole interested person, which is rare because how is the judge supposed to know there are no creditors? Guardian Advocates may also proceed without counsel upon approval of the court.

Trustee represents the trust and the trust cannot be a party in probate. However the Trustee can also be a beneficiary.

Also, i can see the Trustee filling a motion for clarification or other procedural filings.
User avatar
Dale_G
Posts: 3386
Joined: Tue Feb 20, 2007 5:43 pm
Location: Central Florida - on the grown up side of 83

Re: Probate costs?--I am the sole heir and the executor

Post by Dale_G »

According to Rules of Probate published by the Florida Bar in September 2018:
RULE 5.030. ATTORNEYS
(a) Required; Exception. Every guardian and every personal
representative, unless the personal representative remains the sole interested
person
, shall be represented by an attorney admitted to practice in Florida. A
guardian or personal representative who is an attorney admitted to practice in
Florida may represent himself or herself as guardian or personal representative. A
guardian advocate is not required to be represented by an attorney unless otherwise
required by law or the court.
Maybe there is something tricky here, but on the face of it, it appears that a lawyer is not required if the personal representative "remains the sole interested person". Question is, if the personal representative is also the sole heir is he/she the sole interested person?

Dale
Volatility is my friend
OnTrack
Posts: 690
Joined: Wed Jan 20, 2016 11:16 pm

Re: Probate costs?--I am the sole heir and the executor

Post by OnTrack »

FIREchief wrote: Mon May 20, 2019 3:24 pm
RickBoglehead wrote: Mon May 20, 2019 2:33 pm
FIREchief wrote: Mon May 20, 2019 2:27 pm This is an interesting tangent. I know that the value of living trusts is downplayed on the forum, but I can't help but wonder if they just make this all simpler. If the probate estate is zero, none of this is even a concern.
I share your perspective. My mother has a car outside her trust. No probate planned.
Yep. Same here. The only thing we own outside of our trust is a single automobile. I'm planning to change the title to have our trust own that as well. I just need to talk to our insurance agent one more time to make sure that this will work.
Another option in some states is to have a beneficiary for the car (TOD) so the car can be transferred outside of probate.
https://www.nolo.com/legal-encyclopedia ... ciary.html
User avatar
FIREchief
Posts: 5856
Joined: Fri Aug 19, 2016 6:40 pm

Re: Probate costs?--I am the sole heir and the executor

Post by FIREchief »

OnTrack wrote: Sat May 25, 2019 12:07 am
FIREchief wrote: Mon May 20, 2019 3:24 pm
RickBoglehead wrote: Mon May 20, 2019 2:33 pm
FIREchief wrote: Mon May 20, 2019 2:27 pm This is an interesting tangent. I know that the value of living trusts is downplayed on the forum, but I can't help but wonder if they just make this all simpler. If the probate estate is zero, none of this is even a concern.
I share your perspective. My mother has a car outside her trust. No probate planned.
Yep. Same here. The only thing we own outside of our trust is a single automobile. I'm planning to change the title to have our trust own that as well. I just need to talk to our insurance agent one more time to make sure that this will work.
Another option in some states is to have a beneficiary for the car (TOD) so the car can be transferred outside of probate.
https://www.nolo.com/legal-encyclopedia ... ciary.html
Thanks. My state has three options:
a) have an heir "claim" the car via affidavit after 30 days (the person doing this has to certify that they are entitled to the asset, that nobody has or will petition the courts for letters of appointment, that all bills have been or will be paid and that the estate has less than $xxK in assets)
b) assign a beneficiary to the car title (requires a single owner on the title, no "or" owners)
c) re-title the auto to be owned by a trust

I chose "c" and completed the process today. I had a good discussion with my insurance agent a few days ago. I have a major carrier and their system handles this just fine. Trust is added as another interested party (i.e. it has an ownership interest in the vehicle), but all else is as it was. The title change cost $30 and was straightforward. The car title can now be reassigned by either DW or myself or a successor trustee of our trust.

I believe that as I type this my probate estate consists of about $60 in my wallet. I may need to stick a note in my wallet that indicates all currency has been assigned to my living trust..... :beer
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.
Post Reply