Category Archives: Probate

How Do I Probate a Will If I’ve Been Appointed Executor

Many times people are appointed executor under the terms of a will but have no idea how to start the process of probating the will and opening an administration. This article provides a brief overview of the process of probating a will and the initial steps in administering the estate.

Step 1: Meet With An Attorney

A lot of people don’t understand why an attorney is required to probate a will as they often hope to save a little money by trying to probate the will themselves.  So let me explain.

When a will is admitted to probate for administration, it creates an estate that is a separate legal entity.  The individual serving as executor cannot appear in court pro so because the estate is a separate legal entity.  The executor would be appearing on behalf of the estate which would constitute the unauthorized practice of law.

Still people balk at having to pay attorneys fees.  While I understand no one likes to spend money, the good news is that fees incurred administering the estate can be charged to the estate as a priority claim payable only behind funeral expenses and any family allowances.

So the first step is to meet with an attorney, or several attorneys, until you  find an attorney that you feel comfortable working with.

Step 2: Evaluate the Estate and Need for Probate

Working with your attorney, you will review the known assets and liabilities of the deceased’s estate.  You will also evaluate the family members, beneficiaries, and family dynamics that might impact probating the will.  These factors will all serve to help you and your attorney decide whether the estate requires a full administration or whether the will could be admitted to probate as a Muniment of Title.  You read more about probating a will as a Muniment of Title here.

You will also evaluate whether there is a need for emergency orders.  For instance, you may need an order to access a safe deposit box where the will is located.  Or maybe someone has possession of the will but refuses to turn it over to you the executor, or to present it to the probate court.

You will also evaluate whether there is a homestead or any exempt property that will require special care during the probate process.

Step 3: File an Application to Probate the Will

Your attorney will work with you to prepare an application to probate the will.  The contents of the application will depend upon the type of will, the type of probate proceeding you are pursuing, and the manner in which the will was executed.  You will also need to acquire information on the family, beneficiaries, and any documents necessary to support the application.

If there are ambiguous terms in the will or questions about whether someone qualifies to receive a devise under the will, you may also need to file a Determination of Heirship or Declaratory Judgment action to protect the executor from claims related to distributing property to someone who is not a beneficiary.

Step 4: Attend the Hearing to Admit the Will to Probate

The person appointed executor by the terms of the will must attend a hearing for the purpose of admitting the will to probate and issuing letters testamentary to the executor.  This hearing usually occurs only a few weeks after the application is filed.

Depending upon the manner in which the will was executed, there may or may not be additional witnesses required to attend such as witnesses to the will or witnesses who can testify as to the testator’s handwriting.  If the will is self-proved, the only witness may be the person appointed executor under the will.

The good news is that probate hearings are less formal than traditional court hearings – though it is still a court and you should treat it as such.  Most hearings to admit a will to probate will only take about 5-10 minutes unless there are contested issues.

Step 5: After Admitting the Will to Probate There Are Several Statutory Requirements

The newly appointed executor has several obligations within the first 90 days of admitting the will to probate and the executor’s attorney will advise him or her on meeting those obligations.

For example, the executor is required to publish a notice to creditors and to provide notices to beneficiaries under the will.  The executor will also have to prepare an inventory, appraisement, and list of claims or file an affidavit in lieu of the inventory, if allowed.

Step 6: Administer the Estate

This step also begins immediately after the will is admitted to probate.  The executor is responsible for administering the estate by collecting all of the estate assets, paying or rejecting claims against the estate, handling any claims the estate may have against a third party (such as wrongful death), maintaining and preserving estate property for the benefit of the beneficiaries, and eventually distributing those assets to the devisees in accordance with the terms of the will.

The complexity of the administration will depend on the types of assets in the estate as well as whether the estate is administered independent of oversight form the probate court.  A full discussion of administering an estate is a detailed and lengthy subject that is beyond the scope of this article.

If you were appointed to serve as executor of a will and would like to schedule a consultation, please visit my firm website for more information on scheduling a consultation.

Four Probate Options When Someone Passes Away Without A Will

When someone passes away without a will, family members are often left unsure what to do when it comes to settling the person’s estate.  In general, there are four options: (1) a small estate affidavit; (2) an affidavit of heirship; (3) a determination of heirship; and (4) a dependent or independent administration of the estate.  Which option is appropriate depends upon the facts of that person’s estate.  The pros and cons of each of these options are discuss below.

Small Estate Affidavit

The Small Estate Affidavit is used to pass title to assets of smaller estates without the need for significant interaction with the probate court.  There are certain eligibility requirements and the small estate affidavit is not available to transfer title to all types of property or in all situations.

For example, the total value of the estate, excluding homestead and exempt property, cannot exceed $75,000.  In addition, the estate must be solvent meaning that it has more assets than liabilities.

One significant limitation of the small estate affidavit is transferring title to real property.  The affidavit can only be used to transfer title to a homestead (if there is one).  If the house does not qualify as a homestead or there are other pieces of real estate that require transfer, then the small estate affidavit cannot be used.

Another drawback is that there is no personal representative appointed in the case of a small estate affidavit – so if there is any need to administer the estate by collecting assets or paying debts – there is no estate representative with the authority to do so.  Some third parties holding estate property may require letters of administration prior to disbursing that property and those letters are not issued with a Small Estate Affidavit.

The affidavit requires signatures from at least two witnesses and all of the distributees of the estate.  Each person signing the affidavit is liable for any damage or loss that arises from a payment or transfer made in reliance on the affidavit.  This may cause some people (particularly witnesses) to question whether they wish to assume such potential liability.

Affidavit of Heirship

An affidavit of heirship can be a useful alternative when the only assets that require a title transfer are real estate.  Affidavits of heirship are occasionally used for other types of assets, but their acceptability will depend on the institution holding those assets.

Affidavits of heirship are less expensive options designed for small estates where the only asset is real estate.  However, there are some limitations on the effectiveness of affidavits of heirship.  One significant issue is that not all title companies will accept affidavits to establish chain of title to real property.  In some cases, title companies may accept them but only after 2 or 5 years have passed.

Oftentimes, you will not know at the time the affidavit is used which title company will participate in a later sale and whether the affidavit is acceptable to them.  Many title companies require additional information in the affidavit that is above and  beyond what is required by law.

Another drawback is that there is no personal representative appointed in the case of an affidavit of heirship – so if there is any need to administer the estate by collecting assets or paying debts – there is no estate representative with the authority to do so.

The affidavit requires two witness signatures as well as the signatures of all heirs and each of them is liable for any false statements in the affidavit.

Determination of Heirship

A Determination of Heirship is a proceeding in the probate court held for the purpose of establishing the legal heirs to the individual who passed away.   This carries a significant benefit in the form of a judicial determination of the identity of the decedent’s heirs.

In the case of a small estate affidavit or affidavit of heirship, the identity of heirs is established by the sworn statements of those heirs and witnesses.  There is no hearing or court order confirming those facts and they can be easily disputed at a later date in court.  This is the primary reason some third parties refuse to rely upon those affidavits.

Third parties will accept judicial determinations of heirship to identify heirs entitled to property.  This stems from the fact that the court’s judgment comes after evidence is presented and witnesses appear in court.  In addition, the court appoints an attorney ad litem to investigate the family history of the decedent and make a report to the court.  Thus there is less opportunity for fraud or abuse.

The primary drawback to the Determination of Heirship is that it requires filing pleadings with the probate court, the appointment of an attorney ad litem, and at least one hearing before the court.  This means it costs more money.

The benefit is a court order establishing the identity of the decedent’s heirs.  This can prove particularly important in cases where the identity of heirs is questioned or the validity of claims of heirs are suspect.

Dependent or Independent Administration

The difference between a dependent or independent administration of the estate is the amount of probate court involvement in the administration.  Independent administrations occur without significant involvement from the probate court.  Dependent administrations require approval from the court before the administrator can take most actions.

Regardless of whether it is dependent or independent, an administration of the estate involved having someone appointed as administrator of the estate who will be responsible for collecting the decedent’s assets, paying off any liabilities, then distributing any remaining assets to the decedent’s heirs.    In almost all cases, a Determination of Heirship will be filed at the same time as the application for administration of the estate.

The benefit of administering the estate is having a personal representative appointed that receives letters of administration from the probate court.  Letters of administration provide the personal representative with legal authority to deal with third parties on behalf of the estate for the purpose of collecting assets and paying any debts.  Third parties will readily provide information and assets to a personal representative in possession of letters of administration.

This means that the personal representative (with or without court involvement, depending on the type of administration) can handle any issue that comes up in administering the estate, whether it involves collecting estate assets, settling claims, paying liabilities, or distributing those assets to beneficiaries.

The primary drawback is cost.  This is the most expensive option but is often the necessary option for estates with significant assets, liabilities, or property that has been left in the hands of third parties.

How to Keep Your Family Together During the Probate Process

Financial interests and dealing with the emotional loss of a loved one can combine to create tension, dispute, and destruction in family relationships.  Family members fight.  Siblings feel hurt by the terms of a parent’s will.  Someone feels a strong need for a sentimental personal effect.  Family members feel pressure from their own financial problems and look to their inheritance as a solution.

Probate can be lengthy – in many cases it may last well over a year.  Complex cases may last even longer.  Managing family dynamics during this time period can be difficult.

This article is designed to provide some insight for executors and other family members on how they can avoid and diffuse these issues during the probate process.

Set Expectations Early

This should begin even before you have the will admitted to probate and someone is appointed executor.  Speak to family members and beneficiaries.  They often have expectations for immediate access to money or property.  They may have expectations that are contrary to the terms of the decedent’s will.  Explain the probate process and timeline so that those expectations are realistically tied to the time needed to settle the estate.

Partial early distributions is an area where a dispute often arises.  Expectations should be set regarding whether there will be any early distributions.  It is quite common for beneficiaries who are not in a stable financial situation to request loans or advances.  How will you handle those requests? How will you respond when other beneficiaries find out? Set the expectations – and set them for everyone.

You should also set expectations regarding communication and the exchange of information during the probate process.  How will you communicate? How often? Simple estates may not require frequent updates while more complex matters may dictate frequent, even weekly, updates.

Communicate Frequently

The human mind has an amazing ability to develop conspiracy theories when left with little information and the time to do so.  You should communicate with beneficiaries and family members often.  The more complete and accurate the information they have is, the less likely their mind will wander and fill in any gaps with suspicion.

You set the expectations for the probate process and timeline early on.  You should communicate frequently with other family members about where you are in the process.  If there are any issues that may cause a problem or delay, communicate them as soon as you can.  If the expectations for the timeline change, then update them.

Some family members may have previously had access to estate property that they will not have access to during the probate process.  The executor may need to change the locks, secure the property, or otherwise take possession of assets until the probate process is complete.  Communicate that fact early on so that it is not a surprise to some accustomed to having use or access to the property.

Some family members may have relied upon assistance from the decedent – financial or otherwise.  You should communicate with those family members and determine whether the estate can continue that support and how it might go about doing so.  You should also make sure that other beneficiaries or family members are aware of any arrangements you make so they are not surprised to find out about any support the estate provides.

You should discuss how decisions will be made as well as who is responsible for making which decisions.  The executor is ultimately responsible for all decisions regarding the estate, however, there may be room for input from other family members.  Allowing family members to participate in the decision making process so they have an opportunity to be heard and feel like they have a voice can go a long way in avoiding conflict.

Frequent communication will not only help prevent beneficiaries and family members from negative speculation but it will also allow you to anticipate potential conflict so that you can act to de-escalate it quickly.

Be Aware

You should be aware of the expectations of beneficiaries and family members.  You should also be aware of the family dynamics and how that might play into any disputes that might arise during the probate process.

For example:

  • Is someone expecting to inherit under the will but the decedent left them little or nothing?
  • Was someone promised a personal item but it is not written in the will?
  • Is a family member in a financial bind and likely to request an advance or loan?
  • Are tensions already high between certain beneficiaries from some long simmering dispute?  Is that likely to trigger a fight during probate?
  • Are there established roles or pecking orders within the family that might affect their interaction during the probate process?
  • Are discussions best handled as a group or one on one?
  • Are there any items of particular sentimental value that might “disappear” if you don’t take immediate action?
  • Does a beneficiary or family member have a sentimental attachment to a particular personal effect or household item?

You should also be aware of your power and authority as executor.  What does the will say about how to handle disputes among beneficiaries?  How much discretion were you afforded in distributing personal property under the will?  What factors did the decedent instruct you to consider when making decisions regarding distributions?

Understanding the amount of discretion you are allowed as well as what factors you must consider when making decisions regarding distributions can provide you with a foundation to explain your decisions to family members that might otherwise question those decisions.  Providing a sound, logical, explanation for a decision can help prevent any argument from escalating.

Use Your Advisers Wisely

The professionals advising you during the probate process are there to provide objective advice that is unfettered by the emotion that arises between squabbling family members.  Use this to avoid and diffuse potential conflict.

Do you know there is going to be a delay coming up?  Family members might view the news coming directly from you with suspicion or a lack of understanding.  Having the attorney handling the probate inform the family members and explain the reasons for the delay might be more acceptable to other family members.

Tax issues preventing a closure of the estate?  Have the CPA talk to your family members to explain why there is a delay and the importance of handling the matter appropriately.

These professionals act as an objective authority to explain the basis of the decision that might otherwise cause conflict.  You can and should use them to shield yourself from taking the blame from other family members.

In Conclusion

The stress of dealing with loss of a loved one combined with the desire and expectation of new wealth from settling the estate can make family members act in ways they might nor ordinarily act.  A little thought, a little planning, and a lot of communication can go a long way towards ensuring your family can get through the probate process without irreparably damaging your familial relationships.