The Basics of D.C. Estate Administration Part X: Foreign Estate Proceedings or Ancillary Probate Administration

This is my tenth post on my continuing series on the Washington, D.C. Probate Administration concerning ancillary probate and foreign estate proceedings.  You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here), and Part III: Opening the Estate (here), Part IV: Supervised/Unsupervised (here), Part V:  Notice and VCNO (here), Part VI: the Inventory (here), Part VII: The Account (here), Part VIII: Priority of Claims (here), and Part IX: Creditor Claims (here).

Just like any other state, D.C. does not have jurisdiction over real property in another state to dictate distribution to an heir. Similarly, another state/nation does have jurisdiction over real property locate in the District of Columbia.  Thus, ancillary probate arises when a decedent domiciled in D.C. owns assets in another state.  When a decedent domiciled in another state owns real property in D.C., the formal process for ancillary probate in D.C. is called a foreign estate proceeding.

A foreign estate proceeding (“FEP”) in D.C. is analogous to ancillary process in Virginia but there a numerous procedural differences that makes an FEP in D.C. more drawn out. However, the process is not more complex than the probate administration of an unsupervised regular estate in D.C. The FEP process also doesn’t differ if the decedent died with a will or intestate.

A personal representative  (“PR”) administering an estate for a non-D.C. domiciled decedent owning real property would start the process by determining the title and ownership of the real property. Perhaps the decedent only owned a share of the property? After getting letters of administration issued from the state where the PR was appointed, the PR would then start the FEP process in D.C.

The documents needed by the PR to open an FEP, including:

• An authenticated copies of the documents filed in the jurisdiction, including petition, will (if applicable), the order appointing the PR and letters of administration. This packet of documents is generally referred to as “triple-sealed” or “exemplified copies” of the documents. If the documents are from another country, then the documents need to meet with the authentication standards as set forth in Superior Court, Civil Division Rule 44(a)(s). This standard requires that a certificate known as an apostille be affixed to the documents.
• One appointment of Agent to Accept Service of Process form signed with the original signature of the PR and the original signature of the agent located in D.C.
• A Notice of Appointment of Foreign Personal Representative and Notice to Creditors (“Foreign Notice of Appointment”). This document and process is similar to the Notice filed in a regular probate administration in D.C. and serves as notice to creditors.
• A check in the amount of $25.00

Once the documents are accepted, a Preliminary Certificate can be issued stated an FEP has been opened in D.C. The Foreign Notice of Appointment will be published in two publications by the filer with one including the Daily Washington Legal Reporter and another newspaper of general circulation.

After 6 months, the PR would normally file the proofs of publication.  If no claims have been filed against the estate, the D.C. Probate Division will issue Certification of No Claims upon the payment of $10.00. As a note, D.C. assets, including real property, cannot be removed or transferred until after the six-month notice period has expired, the proof of publications have been filed and a Final Certificate has been obtained. If a PR wishes to speed the process along D.C. Code §20-343 sets forth the requirements for transferring assets before the expiration of the six-month period.

If the decedent died domiciled in D.C. and owned property in another jurisdiction, then the PR would need review probate laws in the state where the real property or assets are located and establish the beneficiaries title to the property.  Depending on what state the assets are located in, the process could be relatively easy like Virginia or more complex.

The Basics of D.C. Estate Administration…Part IX – Creditors Claims

This is the ninth in a series of posts on the basics of D.C. probate administration and will describe how creditor claims are handled by the personal representative. You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here), and Part III: Opening the Estate (here), Part IV: Supervised/Unsupervised (here), Part V:  Notice and VCNO (here), Part VI: the Inventory, Part VII: The Account (here), and Part VIII: Priority of Claims (here).

Probate is the legal means of making creditors aware of the death of the decedent and the creditors need to file their claims for debts owed to them by the decedent.  As stated before, the personal representative has the Notice of Appointment, Notice to Creditors, and Notice to Unknown Heirs (“Notice“) published. The Notice provides creditors and unknown heirs six months from the date of first publication to file claims against the estate or to contest the appointment of the personal representative.

Creditors that believe they have a claim can file their claim against the estate on a one-page claim form with the Register of Wills and pay a $5.00 fee. Failing to file might extinguish a claim because some creditors have secured rights. For example,  a deed of trust recorded against real estate is considered a secured debt and that debt is still owed regardless of filing a claim against the estate. However, creditors with unsecured claims against a decedent’s estate, whether or not such claims are currently due, may be barred from collecting their claim if they fail to present their claim in the manner presented by the statute.

Generally, if the debt is not in dispute, the claims are quickly paid if the assets in the estate are large enough to meet those obligations.  However, the personal representative is personally liable to any other claimant whose claim is allowed and who is injured by such payment if:

1. the payment was made before the end of the six-month claim period and the personal representative failed to require adequate security from the payee; or
2. the payment was made due to the negligence or willful fault of the personal representative

Upon timely presentation of a claim, the personal representative may mail a notice to the claimant stating that:

1. the claim has been allowed in the claimed amount;
2. the claim has been disallowed in whole or in part and advising the claimant of the procedures and time limitations for contesting such disallowance; or
3. the personal representative will petition the probate court for a determination on paying the debt.

The creditor can contest disallowance or partial disallowance.

Further, a creditor that previously presented a valid claim or has a valid judgment that has not been paid within eight months of presentation of the claim, may petition the court for an order directing the personal representative to pay the claim to the extent that funds of the estate are available for such payment. The personal representative should respond to a claimant’s petition within 10 days.

The Basics of D.C. Estate Administration…Part VIII – Priority of Claims

This is the eighth in a series of posts on the basics of D.C. probate administration and will describe the priority a personal representative will pay off the debts of the estate. You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here), and Part III: Opening the Estate (here), Part IV: Supervised/Unsupervised (here), Part V:  Notice and VCNO (here), Part VI: the Inventory, and Part VII: The Account (here).

Once the personal representative has marshaled all of the assets of the estate and determined the debts the decedent owed, the personal representative can determine whether the estate is solvent or insolvent. A solvent estate would mean the decedent’s probate assets exceed the debts and estate administration expenses. That means the personal representative will eventually distribute out probate assets pursuant to the terms of decedent’s last will and testament to the heirs. However, if the estate is insolvent, where the estate’s debts and estate administration expenses exceed the probate assets then the personal representative will need to determine who gets paid.

Fortunately, D.C. provides a list of priority that should be followed.  D.C. Code Section 20-906 establishes the order of priority as follows:

1. Court costs, publication costs, and bond premium
2. Funeral expenses not exceeding $1,500*
3. Fiduciary and attorney’s fees not exceeding $1,000+
4. The homestead allowance and the family allowance (more on this in another post)
5. The exempt property allowance (more on this in another post)
6. Reasonable and necessary medical and hospital expenses of the last illness of the decedent including compensation of persons attending the decedent.
7. Claims for rent in arrears for which an attachment may be levied by law
8. Judgments and decrees of any Court in the District of Columbia.
9. All other just claims.

This is just a high-level picture of creditor’s claims and there are a variety of factors that could impact claims including the need to pay off secured debts, for example a home mortgage.

With insolvent estates, the personal representative should follow the priority order of paying off debts. This is done by first meeting all of the obligation in one level of priority before moving to lower priority order.  Creditors lower in the priority order may not be paid, if there are insufficient assets in the probate estate.

*The law allows payment of funeral expenses in excess of $1,500 (1) if the estate is solvent and a will allows the personal representative to pay the amounts in excess in the personal representative’s discretion, (2) when a court allows amounts in excess of $1,500.00 but not more than $5,000.00, or (3) when the estate is solvent and all heirs or legatees waive the funeral expense limit in writing and the waivers are filed with the Court.

Supreme Court finds DOMA Section 3 Unconstitutional

On March 27^th of this year the Supreme Court held oral arguments in U.S. v. Windsor (“Windsor“).  Windsor involves federal laws and benefits, and their applicability to same-sex marriages. You can read my previous thoughts on the Windsor case here. Yesterday, the Supreme Court, struck down a law forbidding federal benefits as it applies to same-sex marriages

In 1996, the U.S. enacted the Defense of Marriage Act, or DOMA, which stated that federal benefits and inter-state recognition division of marriage would only apply to opposite-sex marriages. Section 3 of DOMA codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors’ benefits, immigration, and the filing of joint tax returns.

In Windsor,  the Supreme Court was confronted over whether a same-sex married couple can be granted the unlimited marital deduction that opposite-sex married couples are given. The unlimited marital deduction allows a spouse to give unlimited amount of assets to his or her spouse with reduced or no tax imposed upon the transfer. In a postmortem situation, this can greatly reduce the federal estate taxes an estate will pay when assets are transferred to the surviving spouse. Previously, under DOMA, only opposite-sex married couples could take advantage of this deduction to make these types of transfers to reduce estate taxes.

Edie Windsor and Thea Spyer, her partner, were married in 2007. When Spyer passed away, her estate plan chose to leave her entire estate to Windsor. Until yesterday, if Windsor had been a man, she would not have had to pay any estate tax because of the marital deduction. Edie Windsor argued she should not have had to pay $363,000 in federal estate taxes under equal protection reasons.

In a 5-4 decision, the Supreme Court agreed.

Justice Anthony Kennedy wrote the majority opinion and stated “[t]he federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity…by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The court’s majority ruled that the power of the individual state in defining marriage “is of central relevance” and the decision to grant same-sex couples the right to marry is “of immense import.” The state, the court ruled, “used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” The court held that DOMA “because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.”

For now, it appears the decision only appears to apply to those states that recognize some form of same-sex marriage.  The decision will have a more limited impact in the thirty-one states that do not recognize same-sex marriage. Thus, it would appear from the Windsor decision that if you are same-sex couple in one of the states that doesn’t recognize same-sex marriage you will still be liable for the federal estate tax if your partner’s estate exceeds the federal exemption level.  The reasoning is that you are not married and, thus, not afforded the unlimited marital deduction.

The impact of the Windsor decision on federal law and benefits will be wide-ranging. But, it will be hard not to imagine new cases arising to challenge the denial of same-sex couples to get married in these non-recognition states. For instance, a same-sex couple, with assets that exceeds the federal estate tax exemption levels lives and gets married in Maryland. The couple then moves to Virginia (which doesn’t recognize same-sex marriage) where one of them dies. Under Windsor decisions, it is likely the dying spouse’s estate would have a federal estate tax liability.

I would say more legal cases will be coming.

The Basics of D.C. Estate Administration…Part VII – The Account

This is the seventh in a series of posts on the basics of D.C. probate administration. You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here), and Part III: Opening the Estate (here), Part IV: Supervised/Unsupervised (here), Part V:  Notice and VCNO (here), and Part VI: the Inventory.

This post will describe the account and account process that occurs during an estate administration.

An account tells you the basic financial story that transpires of a period of time during the administration. The first accounting must state all property and money the personal representative has collected, been charged with or disbursed covering the time period of the account.

An account is essentially the balance sheet of the estate.  The accounting starts from the beginning with the assets derived from the initial inventory and tallies financial events that occur during the administration. The account will determine this by reviewing the receipts, gains on sales and adjustments against distributions for debts and administration expenses, disbursements to beneficiaries and heirs, losses on sales and ending assets, etc. Every figure must be supported by documentation listing each transactions, asset or adjustment.  For example, a distribution to a beneficiary can be supported by a canceled check or the value of an asset from a bank or brokerage statement.

However, like other estate filings, whether the estate is supervised or unsupervised determines the filing time and complexity of the account filing.

For a supervised estate, the first accounting must be filed with the Court no later than one year and one day after the date of first publication of the Notice of Appointment. Many times, the first account will also be the final account and the estate administration is closed.  But, if needed, in a supervised estate, subsequent accounts are due every nine months from the date of the filing of the last account until distribution of the estate is completed.

Accounts must be typed on forms prescribed by the Register of Wills.  For supervised estates, the account must contain the following information:

1. All assets of the decedent that have come into the hands of the personal representative and their values, and any property of the decedent not collected;
2. All property sold or otherwise disposed of;
3. All disbursements made;
4. All gains and losses realized;
5. All investments made and all changes of investment, with a description of each such transaction;
6. A schedule of distributions; and
7. For all non-final accounts, a detailed explanation as to why the estate is being held open.

Notice also must be given within 15 days prior to the filing of an account; the personal representative must mail to all heirs or legatees a copy of the account with a notice that the account will be filed on or before a stated date.

For unsupervised estates, the requirements are less onerous. An accounting for an unsupervised estate is to be prepared “at reasonable intervals, or on reasonable demand.” A good rule of thumb is to send an account to the heirs and legatees on approximately the same time schedule as a supervised estate. But, the personal representative does not have to file the account with the Court.

There is not set form for an account in an unsupervised estate. But, if a final account is being filed notice must be sent to all interested persons, which includes creditors of the estate who have filed a claim greater than $500 and whose claim has not been barred or discharged.

Now, that many of the procedural issues of an estate administration have been covered, next time I will get into how an estate is closed in D.C. Though, given the likelihood the Supreme Court ruling on the Windsor case, it will likely not be the next post.

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The Basics of D.C. Probate Administration…Part VI: the Inventory

This is the sixth in a series of posts on the basics of D.C. probate administration. You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here), and Part III: Opening the Estate (here), Part IV: Supervised/Unsupervised (here), and Part V:  Notice and VCNO (here).

This post will describe the need and importance of the inventory. The basic premise behind the need for an inventory is to determine the assets and liabilities and there values on the date the decedent died. Whether the estate is supervised or unsupervised will determine the amount of detail a personal representative will need to provide and whether the inventory will need to be filed with the Court.

The inventory for a supervised estate shall be filed within three months from the date of the personal representative’s appointment.  Further, within fifteen days of filing the inventory, the personal representative must mail a copy of the inventory and a notice that the inventory will be filed with the court on or before a stated date. There is a prescribed inventory form for a supervised estate published by the Auditor-Master (here).

The inventory in a supervised estate lists each item of property owned by the decedent at the time of his or her death, reflecting the fair market value of the property as of the date of death and any encumbrance on such property.  If it is a supervised estate, the inventory shall include:

• Tangible personal property;
• Real property (showing rents owed before the date of death);
• Corporate stocks;
• Debts owed to the decedent, including bonds and notes, bank accounts, savings accounts, and cash;
• Bank accounts, building association shares, savings and loan association accounts, and money;
• Debts owed to the decedent by the personal representative; and
• Any other interest in property, tangible or intangible, that passes by the terms of the will or by the laws of intestacy.

There are two ways an inventory does not have to be filed with the Register of Wills. The first is if the decedent’s last will and testament expressly waives the need to file an inventory. The other way an inventory filing can be waived is if all interested persons waive the need to file said inventory with the Court. If need to filing an account is also waive, in all practical purposes, this converts a supervised estate into an unsupervised estate.

If the estate is unsupervised, the personal representative shall, within three months of appointment, prepare an inventory, listing the decedent’s property in reasonable detail, indicating the fair market value as of the date of the decedent’s death, and the type and amount of any encumbrance existing with respect to the assets. There is no proscribed form to follow for an unsupervised inventory.  The inventory must still be mailed to any interested persons within that three month period.

In simple terms, the account is like balancing a check book and the personal representative is the person in charge of that balancing. And, I will get into the requirements for the account next time.

The Basics of the District of Columbia Probate Administration…Part V: Notice to Creditors, Verification and the First Ninety Days

This is the fifth in a series of posts on the basics of D.C. probate administration. You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here), and Part III: Opening the Estate (here), and Part IV: Supervised/Unsupervised (here).

Now, that the personal representative has received letters of administration there are a couple of additional issues that need to be accomplished in relatively quick order.

First, the Notice of Appointment, Notice to Creditors, and Notice to Unknown Heirs (“Notice“) must be published once a week for three successive weeks in a newspaper or periodical of general circulation of the District of Columbia. It is incumbent upon the personal representative to determine what constitutes a newspaper of general circulation. The Daily Washington Law Reporter is informally designated by the Register of Wills as a required newspaper. Many personal representatives make the assumption that the Washington Post or Times are the only other publications of general circulation that qualify. But, that is not true. There are many others in the area and it might be forth a little effort to investigate other options. 

The Notice provides creditors and unknown heirs six months from the date of first publication to file claims against the estate or to contest the appointment of the personal representative. The first date publication of the Notice is determined by the Probate Division after the Court appoints the personal representative. The Probate Division will transmit the Notice to the two publications designated by the petitioner when the original petition was filed. 

Once the Notices have been published by the publications of general circulation, the publications will send invoices to the personal representative for the costs in publishing the notice. The invoices need to be paid or the administration process comes to halt. Depending on publications, the cost can vary to publish a Notice. The Washington Post is one the most expensive publications of record in the area and can be almost 4 times as expensive as other accepted general circulation publications. Once the personal representative has paid the invoices from the publications, the publications will send the personal representative original proofs of publications

Within twenty (20) days of the date of publication of the Notice, the personal representative must send the Notice plus the General Information for Heirs, Legatees, and Creditors (click here), the “General Information Document.” As you would suspect, the General Information document provides the interested persons with brief introduction into the administration process, basic definitions and other basic information.

Within ninety (90) days, the personal representative must file a document entitled “Verification and Certificate of Notice”, VCNO for short. The VCNO certifies that personal representative has sent the Notice and the General Information document to all of the interested persons. If the VCNO is not filed within ninety days, the Court will schedule a summary hearing with the personal representative to question the reasons for the VCNO not being filed. If the personal representative does not provided an adequate reason the Court may remove the personal representative.

You would be surprised the number of times a personal representative is removed for not filing the VCNO or appearing at the summary hearing. It is almost staggering. If a personal representative is removed, most times the Court will appoint a disinterested member of the Bar to become successor personal representative. That general means an increase in costs because an attorney will charge their normal rate and not the lower rate attributed to the reasonable compensation for non-attorney personal representatives.

I guess I will have to wait until next time when I talk about the inventory and account.

The Basics of the District of Columbia Probate Administration…Part IV: Abbreviated v. Standard Probate and Unsupervised v. Supervised. Hunh?

This is the fourth in a series of posts on the basics of D.C. probate administration. You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here), and Part III: Opening the Estate (here).

One of the biggest roadblocks for many petitioners wanting to open a D.C. probate administration is completing the actual petition form. Click here to see what a blank form for a Petition for Probate for someone dying after July 1, 1995 looks like.

Doesn’t look too onerous. But, it is the first set of boxes that tends to give some pro se petitioners a difficult time.  Most non-lawyers seem to struggle to figure out the differences between an abbreviated probate petition and a standard probate petition and how those differences plays into supervised administration and unsupervised administration.

• Abbreviated Probate Proceeding 

An abbreviated probate proceeding requires less legal formality to open the estate.  In this type of proceeding, the court can determine the validity of a will, or establish that the decedent died intestate and appoint a personal representative without advance notice to interested persons and without the necessity of formal proof of the will. In an abbreviated proceeding, the will may be admitted to probate without the testimony or affidavits of the witnesses if the will appears regular on its face and contains an attestation clause reciting that appropriate formalities were followed.

• Standard Probate Proceeding

A standard probate proceeding requires more legal formality. A standard proceeding typically occurs when the petitioner asking to open the estate does not have the statutory priority to be the personal representative, not nominated in the will or the administration is initiated by a creditor. Advanced notice must be given to all known interested persons via certified mail. In a standard probate proceeding, the proponent, or person in support of the will, must present affidavits of the subscribing witnesses to the will and if there is a disagreement concerning the formalities of surrounding the execution of the will, a formal hearing before a judge could be required.

An abbreviated probate proceeding is the preferred option and only in rare occasions would a petitioner opt for standard.  However, an abbreviated probate proceeding can be set aside any time within 6 months of notice to interested person of the appointment of a personal representative and a standard proceeding can be instituted.

But, once, the personal representative is appointed in either – abbreviated or standard, the estates are administered in the same manner.

• Supervised Administration

The major difference between a supervised and unsupervised administration is the number of documents that the personal representative needs to file with the Probate Court. In a supervised administration almost every estate document needs to be filed with the court. The personal representative would need to file documents like the inventory or the account with the court. Each filing with the court needs to be filed within a certain time frame. For example, the initial inventory needs to be filed with the court within three months from the date of the personal representative’s appointment. With a supervised administration, the inventory also needs to be in the formal manner as proscribed by the court. See Super. Ct. Prob. R. 409(f) 

You can see how time consuming and costly that can be. In fact, the court prefers not to clog the system with relatively routine filings that if a supervised administration is requested by the petitioner the reasons for the request must be stated in the petition. See D.C. Code § 20-402 (2001). There is also the ability for interested persons to convert a supervised administration to an unsupervised administration by filing a waiver.

• Unsupervised Administration

In an unsupervised administration, fewer documents are required to be filed with the court. Many times, the documents only need to be sent to the interested persons. For example, the inventory shall be delivered or mailed to each interested person but the inventory is not required to be filed with the court.  The inventory still needs to be sent to interested persons within three months from the date of the personal representative’s appointment.  But, the format of the inventory does not have to meet the formal requirements of Superior Court Probate Rule 409(f). 

Clearly, having an unsupervised estate is preferred because of the fewer formal filings and requirements. As I move through the process, I will show you some of the issues where having an unsupervised estate can save time and money.

In short, abbreviated/standard relate only to the requirements to open the estate administration while supervised/unsupervised relates to the filing requirements and process for administering the estate.

Next time, we will move into the actual process of administering the estate and discuss the inventory and account.

Windsor Argument Today at Supreme Court is about Estate Tax

I am taking a break from my series of posts on the Basics of Probate Administration in the District of Columbia to address current events before the Supreme Court that could have wide ranging impact on estate planning.

I mentioned about a year ago that the Supreme Court rarely hears estate planning cases because rarely do estate planning matters reach federal or national matters that would need the Supreme Court to weigh in on. Last term, the Supreme Court’s held oral arguments and issued a ruling denying that a child conceived post-death is entitled to Social Security Survivor Benefits. But, the Supreme Court will address an estate planning issue this week as the court addresses state and federal laws that involve the issue of same-sex marriage.

Yesterday, March 26, 2013, the Supreme Court held oral arguments over whether California’s Ballot Proposition 8 that amended the California Constitution, which provides that “only marriage between a man and a woman is valid or recognized in California.  You can read and listen to the oral arguments from yesterday by clicking here.

Today, the Supreme Court hears another argument, in U.S. v. Windsor (“Windsor”), related to same-sex marriages.  In this case, it involves federal laws and benefits. In 1996, the U.S. enacted the Defense of Marriage Act, or DOMA, which stated that federal benefits and inter-state recognition division of marriage would only apply to opposite-sex marriages. Section 3 of DOMA codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors’ benefits, immigration, and the filing of joint tax returns.

While the bigger picture of Windsor is on same-sex marriage, drilling down into the facts of Windsor demonstrates that at the heart of the case is estate taxes and the surviving spouse in the Windsor wanting to minimize the taxes she would owe. Gee, just like every one else wanting to minimize their tax liability.

Edie Windsor and Thea Spyer, her partner, were married in 2007, in Canada. While New York recognized the marriage, the federal government did not. When Spyer got sick, she chose to leave her entire estate to Windsor when she died. If Windsor had been a man, she would not have had to pay any estate tax because of the unlimited marital deduction.  The unlimited marital deduction provides that a married person has the ability to gift/transfer unlimited amounts of money to the other spouse without paying any type of tax on that transfer.  In Windsor, Edie Windsor had to pay $363,000 in federal estate taxes on the inheritance she received from Spyer.  As such, Edie Windsor argues that DOMA violates the equal protection clause of the U.S. Constitution that does not grant the same protections to same-sex “married” couples as it does to opposite sex ones.

It will be interesting to see where the Supreme Court Justices go on this one because of the number of inflection points in the case. In 2011, President Obama, has stated his administration will not defended Section 3 of DOMA in court.  Some legal experts have argued based on the administration’s decision not to defend Section 3 of DOMA then there is no “case or controversy” pursuant to Article III of the U.S. Constitution and the case should be dismissed. If the case is dismissed, this would uphold the Second Circuit Court of Appeal’s decision affirming the District Court’s ruling that Section 3 of DOMA is unconstitutional. One some level, I find this outcome unlikely, since why would the Justice take up the matter to merely dismiss the case.

Another point is the facts are not extremely great for Edie Windsor. While New York recognizes same-sex marriages, it is not as cut-and-dry as same-sex marriage proponents argue. The issue with Windsor is Spyer’s death in 2009. Spyer’s estate and tax issues would be based on federal and state laws in place in 2009 not changes in laws in later years. There is a 2006 New York Court of Appeals ruling that held the “New York Constitution does not compel recognition of marriages between members of the same sex.” Hernandez v. Robles, 885 N.E.2d 1, 5 (N. Y. 2006).  Subsequently, but not before 2009, there were New York cases that had contradictory outcomes to Hernandez.

Given the controversial nature of same-sex marriages within the political spectrum, it will be interesting to see what the Justices decided. I don’t think I would want to be in their shoes.

The Basics of the District of Columbia Probate Administration…Part III: Opening the Estate

This is the third in a series of posts on the basics of D.C. probate administration. You can read previous posts in this series including Part I: high-level differences between Virginia and D.C. estate administrations (here), Part II: qualifying to be a D.C. personal representative (here). This post will focus on the initial process of opening the estate in the District of Columbia (D.C.).

To start off, the third part in the Virginia Probate Administration series dealt with the duties and liabilities of the personal representative.  However, there is not a meaningful difference between the duties of a D.C. personal representative and a Virginia personal representative to warrant a new post. You can read more about the duties and liabilities of the personal representative by clicking here.

To open and estate and become a personal representative, the petitioner, the person trying to become personal representative, needs to file several documents in the Clerk’s office for the Probate Division. The documents that need to be filed depend on whether the decedent’s estate was a large estate or a small estate. A small estate is one where if the decedent died after April 26, 2001, owned assets of $40,000.00 or less in the decedent’s sole name or only real estate in another jurisdiction. (I will go in to more detail about small estate petitions at a later date.) A large estate is open when the decedent owned assets in the decedent’s sole name in excess of $40,000 or for any value, if medical records are being sought to pursue litigation or litigation is going to arise.

For a large estate, the documents required to open the administration for a decedent that died after July 1, 1995 are:

1. The Last Will and Testament (if there is one) and the certification of filing a will form;
2. A petition for probate (form);
3. An abbreviated probate order (form);
4. A Notice of Appointment of Personal Representative, Notice to Creditors and Notice to Unknown Heirs (form);
5. Forms related to a Person Representative’s Bond, either:
   1. Bond of Personal Representative Pursuant to D.C. Code § 20-502(a) (form), or
   2. if all heirs waive bond, a waiver of bond form from each heir, or
   3. if the will waives the need for the petitioner to have a bond or no bond is required; and
6. A check, money order or credit card to pay Court Costs. Court Costs depend on the size of the estate. The Filing Fee Schedule can be found here.

But, before you can even file the documents with the Clerk’s office for the Probate Division, a petitioner needs to ensure that all of the necessary documents have been submitted and that the filings comply with minimum legal requirements. This means the petitioner needs to meet someone from the Probate Division’s Legal Branch. This step tends to trip up many non-attorney petitioners that just go straight to the Clerk’s office.

A Branch Member will not provide legal advice only ensure all the documents are there. Once, a Branch Member signs off on the petitioner’s documents, the documents can be filed with the Clerk’s office. After the petition is accepted for filing, the petition and any attachments, including a draft order, are transmitted to a judge. A judge will review the documents and issue an order approving the documents or denying the petitioner’s filing.

If judge issues an order approving the petitioner’s filing, the order will state that the will is admitted to probate, appoint the personal representative, determine whether the administration of the estate is to be supervised or unsupervised, approve or waive bond, and order payment of the allowances provided for by law.

A copy of the signed order will be mailed to the personal representative and his or her attorney with letters of administration and a Schedule of Mandatory Filings. The personal representative can now take steps to administer the estate.

Completing the actual petition is one of the more tricky steps for a non-attorney petitioner.  Next time, I will discuss those pitfalls including the dreaded standard probate v. abbreviated probate and supervised v. unsupervised decision that seems to throw off many petitioners.