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Probate
Probate is the process and the type of court that handles the evaluation of an estate. This includes the inventory and the subsequent liquidation through settling debts and the transfer of property.
2,421 Questions
Can an estate have 2 executor?
No. The best arrangement is a single executor since having two can complicate and delay the probating of the estate. However, it is up to the testator.
No. The best arrangement is a single executor since having two can complicate and delay the probating of the estate. However, it is up to the testator.
No. The best arrangement is a single executor since having two can complicate and delay the probating of the estate. However, it is up to the testator.
No. The best arrangement is a single executor since having two can complicate and delay the probating of the estate. However, it is up to the testator.
How can you tell if your title is a joint tenants or tenants in common title?
The only way is to read the deed. It will specify how the title is written.
For example, if it says "joint tenants", "jointly" or "tenants by the entirety", or "a married couple", it is joint title. Otherwise, if it simply lists two or more names then there is a presumption that they are are "tenants in common."
Similarly, if title is passed by will, the specific words will determine if title is joint or common, as in "to my surviving children jointly with right of survivorship" or "to my surviving children."
ClarificationIn some jurisdictions simply referring to the owners as a married couple will not create a joint tenancy with the right of survivorship. In those states, a tenancy in common is the default tenancy if the tenancy is not specifically created in the deed. Massachusetts is one example. In some states simply reciting joint tenants in a deed does not create a joint tenancy. The words, "with right of survivorship" must be stated clearly. You need to check your state laws regarding creation of a joint tenancy.
What to do if deceased left no will?
I am not an attorney, and you do need to get professional legal advice. If there is no will, there still may be trusts (there are several kinds) that were created by the deceased. For larger amounts of wealth, trusts are often better than wills. If there are no trusts, and there is no will, then probate court moves in and has control over how and when assets are distributed. This might not be a great problem, but sometimes probate courts can take a very long time to work through a case. Wills must go through probate court as well, but when a person leaves wishes in the form of a will, the job of probate court is to take reasonable steps to validate the will, and to make sure that the provisions in the will don't violate any rules or regulations. Trusts usually do not have to go through probate court, and there are some other advantages of trusts as well.
How do you find out who was the executor of a deceased person's estate?
There are several local services that you can find at this list of Probate Registries:
http://www.hmcourts-service.gov.uk/HMCSCourtFinder/CourtFinder.do?court_work_type_desc=probate
or you could try searching the National Will Database:
http://www.tnwdb.com
but I think that's a commercial venture.
Can anyone attend a probate hearing?
Generally, yes. Probate courts are open to the public in most cases.
How do you find out What is in a will and if probate has cleared?
Once a probate has been filed in the court of jurisdiction it becomes a public record. You need to check the index at the probate court where the decedent last lived to see if a probate has been filed. Many probate offices are computerized. You should try calling first to see if a clerk will check the name in the computer index for you.
What if the executor does not want to sell a house in the will?
There is no problem if the debts of the estate have been paid and the executor is the sole heir. However, if there are other heirs who want to sell the property and take their share of the proceeds the executor must buy out the interests of the other heirs. Otherwise, the heirs are entitled to a sale of the property and can file a petition for partition if the executor will not act.
What happens to bank acoount if someone dies without a will?
Depending on the amount of money, some qualified family member must request to be appointed the Administrator of the estate. There is usually an expedited process for small estates. You need to inquire at your local probate court.
Depending on the amount of money, some qualified family member must request to be appointed the Administrator of the estate. There is usually an expedited process for small estates. You need to inquire at your local probate court.
Depending on the amount of money, some qualified family member must request to be appointed the Administrator of the estate. There is usually an expedited process for small estates. You need to inquire at your local probate court.
Depending on the amount of money, some qualified family member must request to be appointed the Administrator of the estate. There is usually an expedited process for small estates. You need to inquire at your local probate court.
How do I get someone removed as the administrator of an estate?
If the co-administrator is not performing their duties you can petition to have them removed at the same court that made the appointment. You must provide the reasons for the request on the petition for removal.
Do you need to go to probate if the will says i am the executor?
An executor is not an executor until the will has been examined and allowed and they have been appointed by the court.
Is a beneficiary entitled to a copy of will trust?
Before the testator dies, usually not. After death, yes, and it is often required to be filed in the local (county) probate court within a short time, where it becomes a public record to which anyone is "entitled to have a copy".
Can a convicted felon be an executor of a will?
An executor of a Will CAN have a criminal record, however, they MUST have regained citizenship. If citizenship has not been restored then another has to be appointed.
Can an executor transfer the decedent's property into their own name under a executor deed?
You haven't included enough detail. Self dealing by a fiduciary is against the law.
The executor must be appointed by the court and then must follow the provisions in the will and state probate laws. The provisions in the will should include what to do with the real estate. In order for an executor to transfer title to real estate they must have that authority granted in the will. If the authority was not granted by the testator the executor must apply for a license to sell the real estate and before it grants the license to sell the court will examine the proposed transfer.
Why do you need an ein number for an estate?
So that you can pay taxes for the estate. It allows the IRS and state entities to insure the proper taxes are collected. It also allows the executor to open bank accounts and keep them isolated from personal assets.
Can you live in a house that is in probate?
The debts of the deceased must be paid before any property is distributed. Any proceeds from the sale of real estate must be made available to creditors for a statutory period that varies in different jurisdictions. The estate fiduciary must have the proper authority to sell the real estate. A testator can grant the power to an executor by will. If the power to sell is not granted in the will the executor must petition for a license to sell from the court. An administrator must petition for a license to sell.
What called a will that is in one's own handwriting?
A will that is in the testator's own handwriting and signed by the testator is called a holographic will.
How can the named executor be changed in the will of a testator who is now mentally incompetent?
The named executor cannot be changed since the testator is no longer legally competent. No one can make changes to the will. When the testator dies the court will consider objections. If necessary, interested parties can object to the appointment of the named executor if they believe the testator no longer wanted that person to serve. The court will appoint a successor executor if the objections to the appointment succeed or if the named executor cannot serve.
When do you need to do probate?
When the person who wrote it dies. All wills have to go through probate, other wise the state isn't sure that the wishes of the deceased were followed. It also insures the taxes are paid and property properly transferred. Consult an attorney in your state for what applies there.
The answer will depend upon the laws where the person lived (or owned property) and the circumstances of the estate. There are volumes written to assist executors with the overview of the process and how to select and manage any necessary legal assistance.
Basically, the first question is whether there is an "estate" that needs to be probated, and if so, where is the will, and if no will, what are the local rules of intestacy. After that, the possibilities quickly expand (immediate debts and expenses, ongoing business, taxes of decedent, taxes of estate, community property, joint tenants, foreign holdings, no heirs found, pretermitted heirs, priority of gifts, real estate descent, generation skipping, and so forth).
In the simplest case, there are no remaining debts, no estate taxes, and everything was put into joint tenancy (or other ownership), meaning there is no estate and no reason to take it to probate.
What is the time allowed for probate court?
The statute of limitations for probating a Will is four years from the date of the decedent's death.
Can an executor deny a beneficiary the keys to property listed?
Yes, as long as the key controls some asset of the estate like furniture and furnishings in the decedent's house, until administration is completed. Executors and administrators have the obligation to take into their possession and protect all estate assets They are the only ones entitled to possession of estate assets during that administration. Therefore, an executor may withhold from a beneficiary a key to a house even if the will gives the house to that beneficiary, but only for a reasonable amount of time needed to administer the estate.
Who is responsible for a deceased mother's credit card debt which was in her name only?
- Her estate is responsible for all debts. The credit card company could file a probate proceeding if there are assets in her name to satisfy its claim, but it is not common for small unsecured creditors to do so. If a spouse, children or devisees named in her will seek to collect her assets as part of her estate, they will be required to give notice to creditors (including but not limited to the credit card company) in any probate proceeding they initiate. Determination of heirs, settlement of debts and distribution of property is what the probate process is all about.
If she died without assets, then there is no repayment. The credit card company would have no recourse against her family.
- One exception to these principles could arise if she left a surviving spouse. In some states (particularly the "community property" states) a spouse may in some circumstances be liable for some or all of the debts of the deceased spouse. This is not automatic, however; the result will vary by state, by type of debt and by signature or consent of the surviving spouse.
- Another exception might arise if another person either (a) signed the original credit card application, (b) agreed to pay the debts of the decedent (either before or after her death), or (c) used the credit card fraudulently.
How do you find out if your Father left a will in the state of Florida?
If you want to know if a person who died left a Will so that the estate can be probated, then the following information is addressed to that question.
If you know the attorney who represented the decedent in life, you could begin by asking their attorney.
If that information is not known, then you have a common problem. The first task would be to check to see if the will was filed in the local probate court. Next, ask relatives, friends and neighbors if the decedent ever mentioned a will or attorney, or ever recommended an attorney by name. If no one remembers the decedent ever mentioning a will or an attorney, that doesn't mean there is no Will. Many people keep that information private. However, you will need to start thinking and searching. If you cannot find any will, then you will need to file for an Administration of the estate.
At the link below you can read an article about finding lost Wills written by a Texas attorney. He mentions some places to look that the average person wouldn't think of and offers some very good advice. Once you read his advice, you may think of other places to look that may be particular to the decedent.
On the other hand, if you want to know how to find out if a deceased person's estate was probated, and if they had a Will, the first place to check is at the probate court in the jurisdiction where they last lived. Any estate filed for a probate proceeding becomes public information. You may be able to call the probate court and ask them to check their index of names. If they won't do it for you, then you can go to the court and check the index yourself. If you find their name in the probate index, you can request and then read through the file.
Keep in mind that if the decedent owned real estate, the estate must be probated in order for the title to pass to the heirs. If there was no real estate, there is a possibility that the estate was never probated. In that case, even if there was a Will, you won't have access to it unless some family member has possession of it and will let you read it.
Can an executor charge for time and mileage?
They can certainly charge for their time. In most cases there is a maximum hourly rate that is set by law. Mileage would have to be reasonable in the eyes of the court, but the cost of maintaining the estate is normally covered.
Can the wife of a beneficiary be a witness to a will?
United States
The quick answer to your question is:
In the best of circumstances, a witness to a will shouldn't benefit from the will. This could create a conflict of interest. A person witnessing a will should not have an interest in the will as a beneficiary, trustee or executor and should not be related to the testator either by blood or by marriage. Generally, a trust created in a will is called a testamentary trust. In the US, a trustee of a will is a testamentary trustee. A living trust that has testamentary aspects should be executed with the same formalities as a will in the state where the document is executed. State laws are not uniform. Therefore, an attorney who is familiar with the laws of your state should always be consulted.
This is a complicated and multi-faceted topic. The following is a brief discussion of different aspects of witnessing a legal document and is not intended as legal advice. It is important to remember that the purpose of having a properly drawn and executed legal document, especially a testamentary document, is to make the document enforceable and able to withstand challenges of undue influence. There is no simple, uniform rule that is followed by every jurisdiction. Competent witnesses are an integral part of that process and the person drafting legal instruments must do their homework to make certain the document is properly drafted and executed.
Wills
There are two issues that arise concerning the importance of choosing competent witnesses to a will. First, improper witnesses can still render the will invalid in some jurisdictions or affect the gift to a devisee who witnessed the will. Second, although interested persons can witness wills in some states without making the will invalid, in some cases interested witnesses can make the will vulnerable to a challenge of undue influence and probate is a common arena for contentious family squabbles over estates.
At common law a witness to a will could not be a beneficiary. That error would invalidate the will. That harsh treatment was later mitigated by voiding only the gift to that beneficiary or limiting it to an intestate share. That treatment has been further reduced by some state laws, and the Uniform Probate Code, so that a will is valid and the witness-beneficiary suffers no penalty. However, the spectre of undue influence can still rear its ugly head when any person who benefits from the will is also a witness. By that same argument an executor or testamentary trustee who also witnessed the will would leave the door open for later challenges to her/his appointment. Remember, the main objective of proper execution is to make the will strong enough to carry out the testator's wishes.
Most states require two witnesses. Many states require that the witnesses be unconnected to the will. Some states allow an interested party to act as witness but then require that two additional witnesses (that makes three) who are not interested parties also witness the will. In a couple of states a beneficiary-witness must be accompanied by at least two disinterested subscribing witnesses (that makes three) or the gift to that beneficiary will be void. In other states, the interested beneficiary-witness will only receive an intestate share regardless of the testamentary gift unless there are at least two additional disinterested witnesses.
A Uniform Probate Code has been in the works since around 1969. Although it was meant to simplify the probate process in the US it will never be completely successful because only nineteen states have adopted it and of those nineteen some adopted it with modifications. Other states have adopted only parts of the code. Some states have strong opposition to its adoption because some think it encourages a lack of supervision and overturns existing laws that created stronger protection for estates. There is always a good argument against watering down legal formalities. Those states may not abandon their stricter statutory provisions regarding estates. In addition, freestanding acts developed from the UPC have been proposed as an alternative to adoption as a whole.
Of course, all this modification and adoption-in-part makes the Uniform Probate Code not uniform throughout the states that have adopted it. A good example of its easing up on the rules is the following section.
Uniform Probate Code
Section 2‑505. Who May Witness.
- (a) An individual generally competent to be a witness may act as a witness to a will.
- (b) The signing of a will by an interested witness does not invalidate the will or any provision of it.
That section includes some very interesting (and ironic) comments that both acknowledge the old formalities, illustrate the ambiguities that can arise in choosing competent witnesses and may reveal some one-sided argument for reducing the formalities:
- Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator's family on a home‑drawn will is not penalized.
- This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the device might be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested witnesses.
When we consider the various factors as presented above there is one over-riding fact: State laws are not uniform. An improperly drafted and executed will can result in the will being thrown out completely in some jurisdictions and the decedent's property distributed as though there was no will. A poorly drafted and executed will can make the will vulnerable to challenges of undue influence by disgruntled family members in most jurisdictions and a successful challenge can cause significant changes to what the testator originally planned.
Since the laws in different jurisdictions vary and the Uniform Probate Code has not been uniformly adopted in every state and is not "uniform" in its adoptions, and people do not always keep abreast of the law, the best course is still to follow the fundamental rules of good legal practice which include:
- A person witnessing a will should not have an interest in the will as a beneficiary, trustee or executor and should not be related to the testator either by blood or by marriage.
- A testator should have their will drafted by an attorney who specializes in probate and who is familiar with state laws.
Trusts
Trusts have become increasingly popular as a way to bypass probate. As a result, conflicts between trustees and beneficiaries have also increased, many resulting in litigation. A trust transfers title to property to a trustee thereby giving the trustee complete control over all the assets of the trust. Good legal practice dictates that a Declaration of Trust should not be witnessed by the trustee.
A living trust that has testamentary aspects should be executed with the same formalities as a will in the state where the document is executed. As with wills, a witness-trustee may cause the trustee to become vulnerable to a challenge of undue influence. If the trust holds real estate located in another state it may also need to meet the requirements of the state where the real estate is located.
Trusts should be drafted by an attorney who specializes in trust law, estate planning and probate law.
