Probate

The answer depends upon the laws of the state in which the decent died. It also depends upon what the will says. Some will specifically state what happens in such a case and those wishes are to be followed. In absence of specific directions or in absence of a will state laws control. Different states might have different rules.

As an example, in NJ, there are several rules dealing with this issue. First, if the deceased beneficiary is a child of a grandparent common to the decedent and the beneficiary, then the gift the deceased beneficiary would have received had he/she lived goes to the issue (children and grandchildren) of the beneficiary. It does not get distributed as part of the deceased beneficiary's estate. If the beneficiary and the decedent have no common grandparent then the gift lapses and it goes back into the estate to be distributed according to the will most likely as part of the residuary estate. I trust that that is perfectly unintelligible.

The mortgage is still a lien against the property. A quit claim deed does not affect the liabilities and liens, which are still the responsibility of the deceased, and therefore, his estate.

Per stirpes (pronounced /pɝː ˈstɝːpiːz/ "by branch") is a legal term in Latin. An estate of a decedent is distributed per stirpes, if each branch of the family is to receive an equal share of an estate. When the heir in the first generation of a branch predeceased the decedent, the share that would have been given to the heir would be distributed among the heir's issues in equal shares. It may also be known as right of representation distribution, and differs from distribution per capitaas members of the same generation may inherit different amounts.

Yes. You can ask the clerk for the file and review it. Some courts have a public copier where you can make a copy. If not the clerk will provide a copy for a nominal fee. If you can't travel to the court then you could call for instructions on how to obtain a copy by mail.

If the primary or secondary beneficiaries cannot be located, and there is no residuary clause (the safety net), then it is as if there were no will at all, and the local laws of intestacy would apply. If none of the relatives listed (spouse, children, parents, grandparents, cousins, etc) can be found, or if they have pre-deceased the testator, then the estate escheats to the state treasury. This could take years; making certain nobody else can be found.

In the United States you can if the executor is not performing the functions of an executor properly. An executor can be sued to either remove him as executor, to surcharge him for losses he may have caused to the estate or to force him to do what he is supposed to, like transferring assets. If an executor causes monetary losses to the estate, he can be sued to make him reimburse the estate for the losses either from his own pocket or from his statutory commissions. All states in the US have statutes that govern the duties of executors and spell out the remedies beneficiaries and third parties have.

The executor has a responsibility to preserve the estate. They can remove items for appraisal and sale, but the assets still remain a part of the estate until properly distributed.

Generally, wills are kept in numbered files within large vaults or in file storage stacks in storage rooms. The files also contain any other documents that were filed durong the probate process for that decedent. Old probate files are often still stored in ancient file cabinets, including some that were specifically designed for that purpose. Ancient probate files are often put on film with the originals stored to prevent further deterioration. The probate files can be accessed via an alphabetical index.

A "letter of administration" is a document issued by the probate court to the person who is to administer an estate where there is no will. It proves that that person is officially the one to deal with concerning the estate. "Letters testamentary" is the name of the same type of document that is issued to an executor where there is a will.

Yes the executor can certainly bring a lawsuit. There is no requirement for there to be heirs to the estate to bring the suit. The estate may have many debts to settle, including medical bills and be able to use the money.

As a general rule (which might vary from jurisdiction to jurisdiction), an executor takes his/her power from the will, not from any official act pertaining to the will. As such, an executor can dispose of assets effective immediately upon the death of the 'testator.' ==Clarification== Generally, in the United States, legal title to property does not pass to the heirs until the estate is probated. An executor has no power to sell assets, especially real estate, until they have been duly appointed by the probate court. The will must be presented to the court for "allowance". Briefly, there is a statutory period during which interested parties may make objections to the appointment or contest the will. If there are no objections the executor is appointed and issued "Letters Testamentary" which give the executor the legal power to perform such duties as access bank accounts, make insurance claims, settle debts, settle any pending lawsuits, distribute personal property according to the will, etc. There is a statutory period during which creditors must file a claim. The debts of the estate must be paid before any assets can be distributed. Generally an executor can only sell real estate if that power was specifically granted in the will or if the court issued a license to do so.

Probate document usually consist of a certified copy of the will that was admitted to probate, Letters Testamentary and certificates attesting to the executor's appointment. Letters Testamentary is usually a single page document that states the the will has been probated and that the person named in the Letters has actually been appointed by the court to be the executor and now has legal authority to act for the estate. The certificates are more documents that also attest to the named person being te executor. These certificates are generally given to banks or other holders of the decedent's assets before that bank or holder will turn over the decedent's assetts to the named executor. No bank will give another person the decedent's money even if that person brings in the decedent's will and shows that he or she is the named executor. That person may not act as executor until the will is actually probated and the person formally named by the court and the "probate documents" are what proves that.

You are waiving your right to be present at a hearing that states to the court the inventory of an estate. The inventory and apraisal is the money value of tangible and intangible personal property, and real property (realesate).

This does not waive any rights to the estate just to the notice that a hearing stating the inventory will take place.

Standard protocol used when an estate is probated.

No, a birth certificate is NOT a proof of your identity: it is basically a proof of where and when you were born. Normally, a birth certificate can be used as a second form of ID, as long as the other form of ID is a picture ID, such as a drivers license, state issued identification card, and/or passport.

This is a good question. The answer depends on what your are making the beneficiary designation for. That is, an estate, trust, life insurance policy, IRA or retirement account, bank account. Also, what is the total amount of your assets, are you in a community property state? Finally, what do you want to accomplish. Also, estate plans and most policies and accounts allow you to divide between several beneficiaries and name successor beneficiaries, who take the asset if the primary beneficiary fails to survive.

The most basic answer to the question is then beneficiary should be whoever you wish to receive the property when you die. For most married couples with moderate estates, their estate planning documents, life insurance, etc., will name their surviving spouse as the beneficiary. Where the estate is sizable enough sometimes the couple will establish particular gifts for children. Particularly if there are children of a prior marriage or relationship.

For gifts going to minors (under the age of 18), most states have a version of the Unified Transfer to Minors Act. This act (generally) places a minor's property into the hands of a custodian. A court order is required to access (withdraw) the funds in the account. The entire account comes under the minor's control when they reach age 18. (In California, you can delay this to age 21, but you must include the directions in your estate plan.) As an alternative, where the funds are substantial or require significant management, a guardian of the Minor's estate may be required.

The custodian or guardian is normally appointed by the court, but you can specify one in your estate plan.

To avoid a custodial account or guardianship, or delay distributions beyond age 21 (in California) you will need to establish a trust for your minor child. The good news is that this can be an "empty trust" (holds no assets) until your death.

Some assets, as a general rule, should always designate a person as the beneficiary (or beneficiaries). Life insurance and IRA in particular. Life insurance policies are income tax free to the beneficiary (but included in your gross estate for estate tax- more on that in a bit.) So, designating a beneficiary other than your trust or estate makes the most sense.

IRAs (Traditional IRAs) have an additional reason to name real people as beneficiaries. You may recall that IRA distributions are taxed as income. When a person, or persons, inherit a IRA account as a designated beneficiary they can: 1) Cash out immediately; 2) Cash out over a five year period; 3) Take the IRA as an "inherited IRA" requiring them to take a required minimum distribution and allowing them to take additional distributions as needed. While the money they receive is still taxed as income, they can stretch the liability over many years- and they can grow the IRA without paying taxes (except on distributions.) Better yet, they can designate their own beneficiaries and continue this cycle for generations. (Until the feds change the rules.)

In contrast, if your estate or trust is the beneficiary of a traditional IRA, they must cash out immediately (Trusts and estates cannot "own" and IRA). As trusts and estates pay the some of the highest income tax rates, this usually is not the optimum answer.

And, of course, if you name no beneficiary for your life insurance or IRA, the assets are subject to probate which may increase cost of administering your estate.

Estate tax planning is less of an issue under the current rules, except for very large estates. The current exclusion amount for 2016 is $5,450,000 (it increases annualy until the feds change the rules.) Also, the surviving spouse gets the benefit of both an unlimited marital deduction (all property going to the survivor escapes estate tax) and portability (where the survivor gets the unused portion of the deceased spouse's gift and estate tax.)

Of course, this is for Federal Estate Tax- some states may have an estate tax (based on the amount of the decedent's estate) or an inheritance tax (based on the amount the beneficiaries receive), or both.

What this means is that a married couple can effectively shield more than $10,000,000 of property passing to their heirs with a very simple estate plan.

For larger estates (or estates anticipated to grow substantially), there are some additional estate planning devises to avoid estate tax. An ILIT (Irrevocable Life Insurance Trust) is one. An ILIT is a trust which owns an insurance policy on your life, and because you do not "own" the trust the policy is not included in your estate for estate tax calculations. But, they are irrevocable, so you can not change your mind latter. And, ILITs have other administrative, cost and tax considerations associated with them, so a careful analysis is required for their optimal use.

As you can see, the question of "Who should be the beneficiary?" is a more complicated question than it appears, and the advice of a qualified estate planning attorney is generally worthwhile and recomended.

Yes. A decedent's estate is considered to be a taxable entity separate and apart from the decedent therefore it needs its own TIN (Taxpayer Identification Number). The decedent's social security number cannot be used for the estate bank accounts nor can it be used to pay taxes on income earned by the decedent's assets after the date of death. The exucutor completes and files IRS form SS-4 to apply for the TIN. The IRS then issues the TIN to the estate.

Yes. An executor has no legal authority until the will has been filed with the probate court and the executor has been appointed by that court. If the person named as executor in the will is deceased or chooses not to act as executor, they can file a declination or the petitioner can note in the petition the named executor is deceased. In either case, some other person can petition for appointment as executor.

In most states, a step child would not be an heir at law of the deceased unless they were legally adopted by the decedent. New Jersey is an exception whereby a step child can inherit if there are no other living heirs at law. You should speak to an attorney in your area to check for the proper drafting of your will. A properly drafted will is not vulnerable to challenges.

4 years. See the residual limitations provision in the Texas Code. http://www.statutes.legis.state.tx.us/SOTWDocs/CP/htm/CP.16.4952.4289.htm#4986.4319

Property acquired prior to marriage is separate property and remains separate unless the spouse is granted on title and contributes to the mortgage payments from community funds, then they acquire an interest in that separate property in proportion to their contributions. Paying insurance taxes, utilities is not considered a basis to make the property community.

Probate of a Will is a civil court action for the purpose of the orderly transfer of property from a deceased person's estate to his or her heirs. A Will is a formal document directing how the deceased person's property is to be distributed. If there is no property to distribute, there is no need to probate the Will even if there is one in existence.

In Canada, one has 6 months from the date that probate was granted in court to contest or apply to vary the will.

Generally, you should check the return date in the notice you receive. It will state the date on which a hearing will be scheduled and at which you can make your objection.

The will must be filed for probate and you must be appointed executor by the court. An 'executor' has no authority until appointed by the court. Once the will has been examined and approved and you have been appointed, the court will issue Letters Testamentary. Those Letters give you the authority to act on behalf of the estate.

only in the movies is there a "reading of the will" when all the family gathers. in reality, depending on the state decedent died in, the original will is deposited with court. If the estate is over $100,000 in California, a Probate Petition is filed and a court process proceeds. Regardless of all the legal stuff...if you are a beneficiary, or heir-at-law, ask the executor for a copy of the will.