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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
How soon does a will have to be filed after death by an executor?
Most state probate codes have a section that addresses the filing of a will after the death of the testator. For example, in some states the named executor who is in possession of the original will must file it for probate within 30 days. Someone who is not the executor and has possession of the will is required to hand it over to the court within a certain time period also. The rules vary from state to state. You can check the rules in your state by performing a search using 'your state + probate code'. An example from the Probate Code of Washington State is provided below:
Washington State:
- Any person having the custody or control of any will shall, within thirty days after he shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his custody or control any will shall within forty days after he received knowledge of the death of the testator deliver the same to the court having jurisdiction. Any person who shall wilfully violate any of the provisions of this section shall be liable to any party aggrieved for the damages which may be sustained by such violation.
What are the obligation of an executor to the heirs of an estate?
To insure that the estate is settle correctly and efficiently to maximize the heirs inheritance and to provide clean title to property. A full accounting of the estate and its assets must be produced.
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It usually depends whether or not it is a joint account with right of survivorship. A joint account which requires the signature of only one of the account holders is usually one with right of survivorship. One where both are required to sign does not usually have right of survivorship. Generally speaking, if it is an account with right of survivorship, things simply continue on as they did before the death of one of the account holders. Without right of survivorship, the account is usually frozen until after probate. But much depends on the actual wording of the account agreement and the practices of the financial institution. There are no clear and definitive specific answers to your general question.
How does the executor sign the deed?
Yes. The court appointed executor has the authority to settle the estate. That means the executor can endorse and cash any checks that come in after the death of the testator such as paychecks, tax refunds, commission checks, insurance refunds, etc. Those funds are collected and distributed after the debts of the estate have been paid. That is part of the executor's responsibilities.
What is a waiver of notice of probate of will?
The Waiver of Notice of Probate allows the estate to be opened without setting a formal hearing. This is a time saver because setting a formal hearing can be delayed due to a busy court docket.
If the wife dies intestate what are the husbands rights?
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
If her inheritance is now part of her estate it will pass according to the terms of her will or according to the state laws of intestacy if there is no will. You can check your state laws of intestacy at the related question link.
How can you close a bank account owned by a decedent?
Only the legal heir of the deceased has the right to close the account. He/she must take valid identity proof, relationship proof and death certificate of the deceased along with the documents that prove that he/she is the legal heir of the deceased person to the bank to close the account.
United States
In the United States, closing a decedent's bank account is a more formal process. You need to provide the bank with proof that you have the legal authority to close the account. That means you need proof from the probate court of your appointment as the representative of the estate or other official authority as that issued for a small estate. Proving that you are "the" heir is not enough unless the estate has been officially closed and shows that you are the only heir to that account. During the probate process, only the court-appointed estate representative has the authority to access a decedent's bank account, not the heir(s).
How long does it take to settle an estate?
There is no set limit on how long to settle a claim. There are time limits regarding your insurer responding to your claims. You can bring legal action against your company within 2 years (in most states) if you are not happy with the claim processing services of your company.
What happens to your mortgage when you die?
The estate is responsible to pay off the mortgage. Usually this is done by selling the mortgaged property, paying off the mortgage holder and then putting the balance into the estate. The balance will be used to pay off other debts, if any, and then be distributed according to the will, or if there isn't a will, according to the laws of the state.
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Voting, petitioning and writing letters to Congress are all plausible ideas. Lobbying will work as well. However, if you want to be directly influential, I suggest running for political office yourself. Definitely time consuming and expensive, though. Another option is organizing through today's social networks, staging acts of civil dis-obedience, rallying with peaceful demonstrations. If those options fail . . . RIOT!
Can the executor get paid for their services?
They don't have to be paid if they don't want to be paid. But they are entitled to be compensated for their time and effort. And the estate won't be closed if there are outstanding debts, including money owed to the executor.
What is it called when you die without a will?
Intestate. A person who dies without having made a will is said to be intestate. In that case the probate court will appoint an Administrator (when a petition for Administration is filed) and the estate will be distributed according to the state laws of intestacy, which can vary from state to state.
What are the duties of an executive of a will?
You should have in hand the death certificate and the will. Go to the courthouse in the county that the person you are executor of lived in. Show the death certificate and will to the probate court office and tell them you need to set up a 'Probate hearing"..this is the point that my husband is at now with his parents will. You will be given a court date. Most people say, Get an attorney. This is not necessarily true though. If there is a agreement between the beneficialaries, then it is simple to do it yourself. At the hearing you should have the beneficialaries with you so you can all state to the judge your agreement. He will then sign off on it and POW things are done. If there is ANY disagreement you will most definately need a attorney. Keep in my they are not cheap and the more he has to do the more expensive it is. Hope this helps, we are all in agreement to split it three ways between three siblings. Good luck!! Donna
Who can contest the executor of a will?
You can file an objection to the appointment of the executor during the period reserved for such objections in your jurisdictions. If you think the court appointed executor is not performing their duties properly you can file a motion with the court to have the matter reviewed.
Can you open a probate case without an attorney?
No, any individual may handle an estate without a lawyer if he or she is able to. Lawyers are retained if the executor or administrator needs legal advice on idividual issues. Many different laws govern proper administration of an estate. Retaining lawyers is usually helpful but not necessary.
What happen if executor of estate runs off with money from estate?
As long as they have not breached their fiduciary duties, nothing. They take all of the assets, value them, and use them to pay off all debts. If the debts are greater than the assets, the beneficiaries and remaining debt holders do not get paid.
What happens when the executor and trustee disagree?
You have problems. In general, when there are more than one executor, a majority of the executors rules on any one decision or action. That is easy. The difficult situation is where there are only 2 executors and if they disagree there is no majority. When there are two executors, all decisions and actions must be unanimous. If they disagree on something they either have to go to court and have the court make the decision or, if there is no hope of them ever agreeing on anything, then they should go to court to have one removed or have both removed and an impartial person appointed to serve as the sole executor.
How much should an executor get paid?
Executors don't normally work on commission. An executor is entitled to a reasonable fee for services rendered. The probate court may even have a published fee schedule based on hourly rates. The executor must submit a detailed accounting of the estates assets and the distribution, including their fees,to the court for approval.
Probate court handles the items of the will to be sure it is honored. If the person has set up trusts, or has gifted the money in advance, etc. there is no need for probate. By following the process, you insure that all the legal requirements are met to terminate all debts. Without it the individuals that would normally be responsible for the estate may be tracked by creditors and others trying to collect debts. It also insures that property is legally transferred. If the individual had no debts, and no property, then probate isn't necessary, but still recommended to avoid any future complications.
Can a domestic partner inherit a deceased partner's property?
Some states have passed laws that give a right of inheritance to domestic partners. Some states allow committed couples to register a domestic partnership that gives rights of inheritance. If you live in a state that does not provide legal rights to domestic partners then your surviving partner has no legal rights if you die. Since inheritance rights vary from state to state couples who are not legally married should always obtain legal advice in their state of residence to make certain they take the necessary legal steps to protect their partner in the event of their death. That protection may require a valid will or trust.
What does it mean to probate a will?
Probating a will means that the will must be presented to the probate court for allowance. The court will examine the will to determine its validity under state laws. When the will is allowed the court will appoint the named executor who is usually the person who submitted the will for probate. If no executor was named in a will the court will appoint the person who requested the appointment as long as there no are objections. An executor named in a will has no power or authority until they have been appointed by the court.
The court will issue Letters Testamentary to the executor and the letters provide the authority to settle the estate. The executor must settle the estate according to the provisions in the will and the state probate laws under the supervision of the court. The debts of the decedent must be paid before any property can be distributed to the heirs.
Can you apply for letters of administration if the estate has an executor?
If a person dies intestate (without a will) as the sole owner of property then their estate must be probated. A qualified person must apply to be appointed Administrator and will be issued Letters of Administration. The letters give the Administrator the authority to handle the estate property.
(Without these letters you can not do anything with the deceased's property.)
Do Letters Testamentary expire?
They will upon conclusion of the administration of the estate. BUT, in some states the document itself meaning the piece of paper might no longer be accepted as valid after a certain period of time beyond the date on the document. In this case, most states allow the document to be renewed or reissued with a new date. In New Jersey, there are Letters Testamentary and Surrogate's Certificates. The executor keeps the Letters Testamentary and gives banks and other institutions the Certificates that attest to the fact that this person is the executor. The Certificates are dated. Some institutions will not accept them as proof of authority if they are older than 6 months. (This time period is just from custom, not by law). The reason is that within a 6 month time period, that executor could have been removed or discharged and no longer be the executor. If the Certificate is older than 6 months, the executor sends it back to the probate court and the probate court stamps the current date on it, making it good for another 6 months.
The executor or executrix is responsible for carrying out the wishes of the deceased. They are not, strictly speaking, required to consult the heirs as to the details of this unless the will explicitly specifies that they must.
The answer, therefore, is yes, she can.
If one of the heirs believes the executrix is not acting in good faith, then there are legal remedies for this; they should contact an attorney. Not taking the first offer that comes along is not necessarily a failure to act in good faith, though.
