FAQ

What happens in the probate of a will that is not contested?

Usually, the person named as the deceased’s Personal Representative, also known as the Executor or Executrix, goes to a lawyer who knows about probate issues. This lawyer prepares a document called a Petition for the court, along with the Will, and submits these to the probate court.

The lawyer for the person who wants the Will to be accepted by the court usually must inform everyone who would have received property if there was no Will, plus everyone named in the Will. They must give these people a chance to formally object to the Will being accepted.

A hearing for the probate petition is usually set a few weeks to months after it is filed. Depending on the state and factors like who the beneficiaries are, when the Will was signed, whether an attorney prepared it, who witnessed the Will, and if certain affidavits were included, it may be necessary to bring in the witnesses who saw the deceased sign the Will.

If no objections are made and everything looks correct, the court approves the petition, appoints the Personal Representative, orders the payment of taxes and debts, and requires the Personal Representative to file reports with the court to make sure all the deceased’s property is properly managed and distributed according to the Will.

Where is Probate handled?

Probate is usually managed by the court in the State and County where the person lived when they died. This type of court can have different names. For example, in New York, it is called Surrogate’s Court, while in California, it is known as Superior Court, Probate Division. However, most people simply call it probate court.

Can I handle probate without a lawyer?

While you don’t have to hire a probate lawyer, probate can be a complicated process. Just missing one small detail or failing to send a document to Great Aunt Maggie can slow everything down or risk legal problems for everyone involved.

When someone in your family or circle of friends passes away, it can bring out the worst in certain people. Even in close families, people often get very emotional over small issues, like who gets the clock and who gets the painting. These little disagreements or any delays can be frustrating and raise questions of fairness, leading to unnecessary distrust among family members. Because of this, it is usually a good idea to let a lawyer handle it.

Definitions of the Personal Representative / Executor / Executrix and their duties.

What happens when someone who dies owns land in different states?

Usually, the laws of the state where the person last lived decide how to deal with their belongings. This includes all their personal items and the real estate in that state. So, probate is typically started in the last state where the person lived.

If the person owned real estate in another state, that state’s laws can affect who gets the property if there is no will. If there is a will and it has been submitted for probate in the person’s last state of residence, it often needs to be submitted again in the states where the person owned property. This extra submission is called “ancillary probate.” Some states also require a local person to manage any property within that state.

If there is no will, probate is usually needed in each state where the property is located, as well as in the home state. Each state can have its own rules for how to share assets. For example, one state might give all the real estate to the spouse, while another might split it evenly between the spouse and children. In yet another case, half of the assets might go to the spouse, and the rest might be shared among the children. This is why having a will is crucial; it clearly shows the wishes of the deceased and helps prevent family conflicts after a death.

Who is legally responsible for handling the probate process?

If there is a will, the Personal Representative, often called the executor, is usually in charge of the probate process. If there is no will, the court appoints an administrator to manage the estate following probate rules.

In many states, the probate court has significant control over what the Personal Representative can do. They often need court approval for certain actions, like selling property or business assets owned by the estate.

What are the main duties of a Personal Representative?

The main responsibilities of a Personal Representative include:

– Figuring out if there are any probate assets
– Finding, gathering, and listing the deceased’s assets
– Collecting payments owed to the estate, like interest, dividends, and other income, such as unpaid salary or vacation pay
– Setting up an estate checking account
– Distributing assets according to the Will (if there is no Will, state laws will apply)
– Valuing or assessing the assets of the estate
– Notifying potential creditors (rules and deadlines for creditors to file claims can differ by state)
– Checking the validity of all claims against the estate
– Paying for funeral costs, outstanding debts, and valid claims
– Covering the expenses of managing the estate
– Taking care of paperwork, like canceling utilities and credit cards, and informing Social Security, Civil Service, and the Veterans Administration about the death
– Filing and paying income and estate taxes
– Distributing the leftover property according to the instructions in the deceased’s Will
– Closing the probate process

If I am named as the personal representative, do I have to accept the job?

No, you always have the option to either serve or decline the role. Even if you initially agree to serve, you can resign later. If you do resign before the probate process is complete, you may be required to provide an “accounting” for the period you served. If you decline to serve or resign later, any alternate named in the will is usually appointed by the court. If no alternate representative is named, or if the named alternate dies or is unwilling to serve, the probate court will appoint someone to act as the personal representative, especially if there is no will.

Are personal representatives usually paid for their work?

Compensation is not mandatory, but personal representatives are typically paid for their work. Additionally, all personal expenses incurred while managing the estate must be reimbursed. Generally, a personal representative earns around 2% of the total value of the estate. This fee may be set by the courts or according to state law, and it can vary moderately from state to state. Typically, this percentage decreases as the size of the estate increases.

All payments made to the personal representative are subject to approval by the probate court. The court may allow additional fees in cases of unusual difficulty or extraordinary circumstances. However, if a personal representative fails to fulfill their duties in an orderly or timely manner, the court may reduce or deny their compensation. Moreover, the personal representative may be held liable for any damages caused by their negligence.

If a person is both the sole beneficiary of the estate and the estate is not subject to Federal Estate Tax, it usually does not make sense to accept any fees, as all fee income is subject to income tax. In contrast, money received from the estate by a beneficiary is typically income tax-free.

What happens if the personal representative fails to perform their duty?

An executor or administrator who neglects their responsibilities may be personally liable for any damages caused during the administration of the estate. This liability can arise from improperly managing estate assets, failing to collect debts owed to the estate, overpaying claimants, selling assets without proper authority or at inappropriate prices, neglecting tax return deadlines, or distributing property to the wrong beneficiaries. Consequently, the personal representative might end up covering losses out of their own pocket.

What if someone objects to or contests the will?

If someone files an objection to the will or presents an alternative will, this initiates a “will contest.” While will contests are not uncommon and few are successful, they can be extremely costly and cause significant delays.

It’s important to understand that to contest a will, a person must have “standing.” For example, although you may believe that your neighbor’s children mistreated her, that does not give you the right to contest her will. A person has the proper standing to contest a will if they are a beneficiary who has been disinherited or if a later will is less favorable than an earlier one. For instance, if one sibling receives two-thirds of a parent’s estate while another receives one-third, the sibling receiving less has standing to contest the will. Similarly, if a new will is less advantageous than an older will or if there is no will at all, the aggrieved person can contest it. A will contest can also be initiated to appoint a different personal representative or a trustee for trusts established by the will.

What is the reason for contesting a will?
Most challenges to invalidate wills come from potential heirs or beneficiaries who received little or nothing from the estate. Questions about a will’s validity must be filed in probate court within a certain time after being notified of the death or receiving a petition to approve the will.

Common objections include:
– The will was not properly prepared, signed, or witnessed as required by the state.
– The person who passed away did not have the mental ability to create the will.
– There was fraud, pressure, or influence from others.
– The will was a fake.

If a court finds the will invalid, it may reject all parts or just the contested sections. If the whole will is invalid, the estate is usually divided according to the intestacy laws of the state.

If there is any chance of contesting a will, it is important to get help from a skilled probate lawyer.

How can a will be contested?

A contest usually starts with filing paperwork in probate court by an heir, potential heir, or other beneficiaries. Each state has different deadlines for when a contest can be submitted. To successfully challenge a will, there must be strong evidence that it was not properly made. Feeling hurt or upset about not receiving what one thinks they should is not enough reason for a contest. Generally, only specific legal reasons can be contested, including the incapacity of the person who died when the will was made, deceitful intent by others, or undue pressure on the person who died.

What if there is no will?

If someone dies without a will (known as dying “intestate”), the probate court appoints a person called an “administrator” to manage claims against the estate, pay debts, and distribute the remaining belongings according to state laws.

The main difference between dying with a will (testate) and without one (intestate) is that without a valid will, the estate is divided based on state law, while a testate estate follows the person’s wishes as stated in their will.

What happens if a will cannot be found?

Missing wills create different legal problems that depend on the specific facts and state laws where the deceased lived.

A will might be missing because the deceased decided to revoke it. In this case, state law would determine if an earlier will or intestate succession rules decide who inherits the estate.

Alternatively, a will could be missing if it can be shown that it was kept in a bank vault that was destroyed. In such situations, the probate court might accept a copy of the will or a draft from a lawyer, along with proof that the original was properly signed.

How can I find out if there was a will?

The first place to look is the probate court in the county where the deceased lived. If the will was filed, it is usually available to the public.

Anyone can see it and can get a copy for a small fee. If you are far away, a local lawyer or legal service can help search for it and obtain a copy at a reasonable cost.

Just because someone dies—regardless of how much property they have—does not mean they had a will or that one was filed. If the deceased owned property through a living trust or joint ownership, there might not have been a need to file a will since the trust does not “die” with the person. Also, for certain types of joint ownership, the property typically goes automatically to the other joint owners.

How can I avoid probate of my estate?

One good way to avoid or reduce probate is by using a Living Trust, which holds legal ownership of some or all of your property when you pass away. This Trust is a legal setup that stays in effect after your death.

How are creditors handled against the estate?

Creditors are informed of the death during the probate process. How this is done can differ by state and might include sending letters to each creditor or placing a notice in the local newspaper. After being notified, creditors have a specific time (set by the court) to submit claims against the estate, either by informing the personal representative or, in some states, directly contacting the probate court. If the personal representative accepts a claim, the bill is usually paid from the estate. If a claim is denied, the creditor may need to sue the estate for payment.

If the estate does not have enough money to pay its debts, laws usually decide who gets paid and in what order. The personal representative might have to sell some or all of the deceased person’s property to pay the creditors.

Do beneficiaries have to pay creditors out of their own pocket if the estate is insolvent?

Generally, no. Just as you cannot take your debts with you, you cannot pass them on to others without their agreement. This prevents someone from naming their enemy as a beneficiary, unfairly passing on their debts.

Unless the deceased person gave their assets to someone right before dying or worked with them to cheat creditors, beneficiaries are usually not responsible for the deceased’s debts just because they are beneficiaries. While the estate might not have any money left for them, beneficiaries do not have to cover the deceased’s debts.

However, if beneficiaries received property or benefits from the estate, or if they agreed to take care of the deceased and guaranteed payment, they might be responsible for some of the deceased’s debts, but not because of their relationship to the deceased.

How are taxes handled in probate?

For federal and state taxes, death triggers two main events:

1. It ends the deceased person’s last tax year for filing an income tax return.
2. It creates a new, separate entity for tax purposes called the “estate.”

For federal taxes, it might be necessary to complete and file certain forms based on the deceased’s income, the estate size, and the estate’s income:

– Final Form 1040 Federal Income Tax return
– Form 1041 Federal Fiduciary Income Tax returns for the estate
– Form 709 Federal Gift Tax return(s)
– Form 706 Federal Estate Tax return

For state taxes, the executor must file the appropriate state income tax return (if the deceased was required to while alive) and any state tax returns during probate, along with possible estate tax, inheritance tax, and gift tax returns. Many states have removed estate, gift, and inheritance taxes for most small and medium-sized estates. The rules for filing and payment can be very different from state to state.

Other taxes that the personal representative needs to pay attention to during probate include local real estate and personal property taxes, business taxes, and any special state taxes.

The personal representative should also watch for possible tax issues from years before the deceased’s death.

After a will is created, can it be modified?

Yes, a will can be changed. The main requirement is that the person changing it must be competent, often described as “being of sound mind.” A will can be updated with an addendum, known as a codicil, or replaced entirely with a new will. Also, some legal events, like divorce, can change how a will works. For example, divorce usually ends an ex-spouse’s rights unless the will specifically says otherwise. However, separation does not end a spouse’s rights. This is just one example, and it’s important to talk to a probate attorney who knows the laws in your state.

Are provisions for the care and guardianship of minor children usually included in a will?

They often are, but a court is not required to follow these wishes and may change them if there is a good reason or a challenge from a family member or interested party. A different guardian might be chosen if the one named is seen as unsuitable due to character or other reasons. Ultimately, the judge will make the final decision on guardianship, but the wishes of the person who made the will are usually prioritized. It is very important to include this provision in a will, as it may be the only way to formally recognize your wishes for guardianship.

Are there any specific rules about how property can be disposed of?

Yes, there are some rules. For example, if you say in your will that you want all your belongings buried in a big hole in your backyard, a court might see that as strange and refuse it. A judge can cancel all or part of a will. You cannot change the law just by writing what you want in your will. For instance, you cannot take away any legal rights that a spouse, child, or business partner has to your estate just by mentioning it in your will; those rights still stand.

Can there be more than one designated personal representative?

Yes, you can have co-representatives or a backup representative. But this might make things complicated during probate if the representatives disagree. Usually, one representative is enough, and extra representatives should only be added for specific reasons. For example, one person might handle real estate while another manages other matters. Appointing co-representatives just to avoid hurting someone’s feelings is not a good idea and should be avoided. Often, talking openly with those involved can clear up concerns and allow one person to take care of the responsibilities without the problems of co-representation.

Is it necessary for the personal representative to live in the decedent’s state?

It depends on the laws of the state, but it usually isn’t a strict requirement. Having a personal representative who lives in the state can make things easier, especially for larger estates and property issues.

How does “joint tenancy” affect a will?

Joint tenancy with right of survivorship is a common way to share property ownership, but it doesn’t replace a will. Usually, the surviving owner is a spouse, but it can apply to other situations too. If one owner dies, the other automatically becomes the sole owner of that property. Therefore, that property won’t be part of the deceased’s estate and won’t go through probate. However, everyone involved should know about any potential tax issues that might arise from this type of ownership.

Must a will actually be read aloud to the family by the personal representative or attorney?

While some state laws might require this, it’s more of a Hollywood idea than a real-life need. Usually, the personal representative tells all interested parties about the probate process, and they can get a copy of the will from the probate court if they wish. Often, copies of the will are made and shared with the relevant people by the representative.

Should a will provide a separate list that details and bequeaths specific personal property?

If state law allows it, having such a list can be helpful since it can be updated without needing to change the will or add to it.

What are the actual requirements for a will to be valid?

While rules may vary by state, a valid will usually must be either handwritten or typed and signed by the person creating it, called the testator. The will typically needs to be witnessed by at least two people who are not named as beneficiaries. These witnesses must also be mentally capable. The number of witnesses needed can differ between states. The testator must be at least 18 years old, though a married person younger than that can still make a will. Notarization is not usually needed for a will, but it can help prove its validity. Handwritten wills are recognized in many states as valid without witnesses, as long as they are in the testator’s handwriting and signed. Additional rules may apply to these types of wills in different states.

What happens if a person dies without leaving a will?

Each state usually has laws that provide a default plan for those who die without a will, known as dying intestate. Generally, the spouse and children of the deceased will receive the property. If there’s no spouse or children, the deceased’s parents typically inherit the estate. If the parents have passed away, siblings or grandparents may get the estate. If no close relatives can be found, the property will eventually go to the state. It’s important to remember that creditors, including tax authorities, can claim any debts from the estate before it is distributed, which might mean selling property to pay those debts.

When should I make a will?

The simple answer is now. Death can happen unexpectedly, and no one knows when it might occur. Making a will is a responsible step for your loved ones, and you should check it regularly to make sure it still reflects your wishes. If it doesn’t, make updates as needed. Almost everyone owns some form of personal property, and having a will is key to avoiding confusion or disputes among heirs after your death. While state laws will decide how property is shared for someone who dies without a will, the default plan usually favors relatives. This means that a girlfriend, boyfriend, partner, or fiancé won’t have any legal rights unless mentioned in a valid will.

Who can or should draft my will?

If you decide not to write your own will (which is perfectly okay), only an attorney can legally make one for you. Be careful because self-made wills can often be incomplete, resulting in them being invalid under state laws. While there are various kits to create wills, they often don’t meet the specific requirements of your state. A will that doesn’t follow state laws could be found invalid.

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