We provide the following Probate services:
- Probate Strategies including Avoiding Probate
- Decedent’s Estate Representation
- Defend a Will Contest
- Conservatorship Proceedings
The responsibility for settling the affairs of a decedent often falls upon a family member or friend. We have prepared this booklet to answer some questions about probate court procedures that are often asked during the settlement of a decedent’s estate. Since many of the estates handled in the probate courts deal with complex statutes and tax laws, it is important for each person to seek competent professional advice when faced with these problems. This booklet should not be considered as a substitute for that advice but rather as a guide to the fiduciary’s responsibilities.
Why do probate courts become involved in the settling of decedents’ estates?
When a person who owns property dies, the probate court becomes involved to oversee the division of his property among those legally entitled to it. This division of property will be carried out according to the person’s wishes if he had made them known by executing a will. If the person, referred to as a “decedent,” left no will, the property will be divided according to certain laws known as the laws of “intestacy.” In addition to overseeing the distribution of the estate, the probate court will ensure that any debts of the decedent, funeral expenses, and taxes are paid prior to distributing the remaining assets of the estate.
How do probate courts become involved in the settling of decedents’ estates?
A decedent who left a will is known as a “testator.” Within 30 days of the testator’s death, the will must be brought to the probate court in the district in which he or she had last permanently resided. This is usually the responsibility of the “executor,” a person named in the testator’s will to carry out the terms of the will. Any other person who has knowledge of, or possession of, a will for the testator must deliver the will either to the executor or to the probate court within 30 days of the testator’s death. There is a criminal penalty for failure to do so.
In addition to a will, there may be additions or amendments to the will that are known as “codicils.” A codicil is the only legal document that can add to, delete, or modify provisions of a will. Any codicils must also be delivered to the probate court within 30 days of the testator’s death. Before the provisions of a will are carried out, the will must be “probated” or “proved” in the probate court in a proceeding to determine the will’s validity as a legal document. The court approves the appointment of the executor named in the will as part of this process. In the case of a person who dies “intestate,” having left no will, an application for appointment of an administrator to handle the decedent’s affairs and property must be filed in the probate court in the district in which the decedent had her permanent residence at the time of death. This is usually done by the decedent’s surviving spouse, an adult child, or other relative. The court will appoint an administrator who will have the same duties as an executor named in a will. The law favors the appointment of close relatives, such as the spouse or a child. Both the administrator and the executor are referred to as the “fiduciary,” a term used to denote a person (or persons) who holds a position of trust involving the handling of the property of another.
What are the responsibilities of a fiduciary in the handling of a decedent’s estate?
The fiduciary’s responsibilities in the handling of a decedent’s estate include managing all transactions in a careful manner, ensuring the preservation of the estate’s assets, and expediting the final settlement of the estate. The fiduciary is expected to be fair and impartial in all dealings with creditors and beneficiaries. The fiduciary has the responsibility for filing all necessary documents in connection with the administration of the estate in the probate court. A step-by-step list of responsibilities is contained within this pamphlet.
When should a fiduciary seek professional assistance?
While the probate court may assist a fiduciary in administering an estate, it is often advisable for the fiduciary to engage professional assistance. For example, professional assistance may be necessary when the estate to be managed involves substantial or unusual assets or if the estate is large enough to involve the filing of a Federal Estate Tax Return. Forms that need to be filed in the probate court are available from the court, and instructions for their completion are often included on the forms.
Is there a simplified procedure for settling small estates with limited types of assets?
A simplified procedure for settling the estate may be available if the total value of the estate assets does not exceed $40,000. In addition, at the time of death the decedent must not own any real estate other than survivorship property, and the estate assets must consist only of personal property and/or an unreleased interest in a mortgage with or without value. This simplified procedure may be used even though survivorship property passed to a survivor as a result of the death of the decedent. In such a case it is not usually necessary to apply for the appointment of an administrator or admission of the will for probate. If the claims against the estate equal or exceed the assets, no distribution will be necessary. In the event that there are excess assets after the payment of debts and expenses, and either no will is found or the will’s terms are not inconsistent with the laws of intestate succession, then the court shall order distribution in accordance with the laws of intestacy without admitting the will to probate. If, however, there is a will that provides for a distribution that is not consistent with the laws of intestate succession, then the court shall order a distribution in accordance with the terms of the will only if the decedent’s heirs-at-law sign a written waiver of their right to contest the will. In the alternative, the court will order a distribution in accordance with the laws of intestacy if the beneficiaries named in the will consent in writing to such a distribution. If neither the heirs sign a waiver of their rights, nor the beneficiaries consent to an intestate distribution, the small estates procedure will not be available to settle the estate, and the will must be offered for probate.
A conservator is a person appointed by the Probate Court to oversee the financial and/or personal affairs of an adult person who is determined by the Probate Court to be incapable of managing his or her affairs or unable to care for himself or herself. A conservator may also be appointed for the same purpose for a capable person who requests such assistance. There are two basic types of conservatorships to accommodate the different needs of individuals. A “conservator of the person” is appointed to supervise the personal affairs of an individual who is found by the court to be unable, even with appropriate assistance, to meet essential requirements for personal needs. These needs may include, but are not limited to, the need for food, clothing, shelter, health care, and safety. A “conservator of the estate” is appointed to supervise the financial affairs of an individual who is found by the court to be incapable of doing so himself to the extent that property will be wasted unless adequate property management is provided. This may include, but is not limited to, actions to: (1) obtain, administer, manage, protect, and dispose of real and personal property and tangible property, business property, benefits and income, and (2) deal with financial affairs.
A person may be in need of one or both types of conservators. Two separate individuals may perform these two roles, or one person may serve in both capacities. A conservator of the estate or person may be an individual, a legally authorized municipal or state official, or a private or nonprofit corporation. However, hospitals and nursing homes cannot be appointed conservators of either the person or the estate, and banks cannot be appointed conservators of the person. An adult with intellectual disability may be in need of a conservator of the estate to manage his or her financial affairs, while a guardian of the person with intellectual disability is appropriate to oversee his or her personal affairs.