Probate

If someone dies intestate in England and Wales there is a complex matrix of who gets the estate, designed to satisfy the probable wishes of the deceased. Basically, if you are married your spouse gets the first big chunk with the rest going to your children if you have any. If you are not married it will be divided equally among your children, if you have no children, then your parents, if no parents, your siblings. The list goes on until you have run out of potential relatives. If no relatives can be traced whatsoever then the estate will pass to the Crown.

No. The purpose of a Will is to distribute the testator's property after death. A Will, if properly drafted, becomes operative upon the death of the testator. It must be submitted to probate court for allowance and the testator's property will be distributed as set forth in the Will after the debts of the estate have been paid.

Yes there is. An Executor (male) Executrix (female) who is doing a poor job or cheating or stealing from the said property of the deceased can indeed be taken off the Will, but you will have to see a lawyer about this and prove it. Be very careful with this accusation and learn about Probate, and what the duties of an Executor/Executrix. You can find out by going on www.google.com and asking "What are the duties of an Executor regarding a Will?" Here is a quick scan over what their duties are (I've done it.) For instance, if there are 2 or more heirs in the Will, they can vote re ousting out the Executor/Executrix. **If the heirs are the children of the deceased they have the right to go onto the property and retrieve any personal effects of their parent(s). The Executor/Executrix cannot stop this! DUTIES OF EXECUTOR/EXECUTRIX Once the person is deceased the Executor/Executrix has the right to pay off things like funeral costs, etc., and small bills such as Hydro, electricity, phone, cable, outstanding charge card balances, etc. However, they MUST KEEP RECORDS! Then the Will goes to Probate. Probate makes sure that all house/personal taxes are paid as well as any other outstanding debts such as mortgages, back taxes on home/property, etc. If the Estate is small to average the Executor/Executrix has the right to either do this on their own (you can get the forms) and it's much cheaper and usually quicker than a lawyer doing it and not as hard as lawyers would have you believe. If the Executor/Executrix decides to this they have to account for everything in the said Will and ALL expenses they have had since that person's death. The Executor/Executrix can sell the home, but should give the heirs a chance to decide if one of them wants to buy that house or property outright. Once the house/property is sold that money goes back into the Estate and divided according to the wishes of the deceased. The Executor/Executrix can also sell a car, motorcycle, boat, etc., but, if one of the heirs would like to buy it they should have that option and proceeds go back into the Estate to be equally divided by the said heirs. THE EXECUTOR/EXECUTRIX CANNOT CHARGE GAS, USE ANY MONEY FROM ANY ACCOUNT OF THE DECEASED FOR THEIR OWN PERSONAL GAIN ... SUCH AS BUYING SOMETHING FOR THEMSELVES. In some Wills a person will leave anywhere from 2% - 5% or possibly more of the entire Estate to the Executor/Executrix for their time and effort. If it isn't stated in the Will, the heirs don't have to give them anything, but should if they feel a good job as it can be time consuming processing a Will. Usually 3% is fair, but depends if it's a small or large Estate. I would highly suggest you see your lawyer. Good luck Marcy * Probate laws differ in each state. Therefore not all such acts noted are legal in all US states. For example, in many states no property regardless of what the item may be can be taken, sold or distributed until permission is granted by the probate court. In other states any property that is exempted from probate can be distributed to family members or heirs as it is not subject to creditor action in case of outstanding debts. In most US states the only way an executor, executrix or personal representative can be removed is by a bringing suit in probate court charging said persons with misappropriation and mishandling of the estate. Removing a fiduciary is damaging to the estate and is rarely allowed by the court. And of course the accused party has the right to defend themselves and so on and so forth, in other words it is time consuming and usually very expensive. This is the reason it is not prudent to waive bonding of an executor or executrix even if the grantor prefers to do so.

If real property is involved the estate must be probated in court in order for legal title to pass to the heirs. Once the estate has been probated, the heirs can convey their interest in the real estate to whomever they wish. The property could also be sold by the court appointed administrator of the estate by a license to sell real estate issued by the probate court.

When a person dies without a will, their belongings are said to be intestate, and the case will be probated. If there is no money, property, or jewelry that the person wants to leave to someone, it is best to settle in probate for any possessions.

Absolutely not. Once a will has been allowed by the court and the executor has been appointed by the court, the executor must settle the estate according to the terms in the will. The executor must follow the state probate laws and works under the supervision of the court. If they mishandle the estate they can be removed and may be personally liable.

Notaries cannot notarize documents in which they have a stake. If the notary is one of the parties listed on a legal document or incurs a gain as a result of execution of the document, the notary cannot notarize it.

A fee that represents a reasonable compensation for the amount of time and effort expended by the executor.

In other words... there's no specific dollar amount; it depends on the details.

Yes. No person can be forced to accept property given to him/her by someone else's will. Likewise, no person can be forced to serve as an executor. A named executor is said to have a duty to offer the will for probate or lodge it with the probate court without offering it for probate, but that is as far as it goes. As to the property, many states have laws whereby a beneficiary may "disclaim" his gift. There is also a common law right to renounce it. Unfortunately in this case, if the person is the sole beneficiary and there are no alternate beneficiaries either in the will or in law, the estate may escheat to the state. If you wish to refuse the estate you may also do it by assigning it to another person. Maybe we can talk.

A decedent's heirs are those persons who would inherit his or her property if the decedent died without a will. A living person has no heirs, although a living person may have heirs presumptive, or a person could be an heir apparent to a living person. A person who dies without a will is intestate. All of the states and the District of Columbia have statutes describing who is entitled to received the decedent's estate. There is a wide variation in these state laws. Usually the surviving sposue, if any, is eneitled to a share, then children or more remote issue, or if none, then parenst, followed by brothers and sisters, cousins, and so forth.

Yes, and frequently this is the case. (By "inherited home" I assume you mean property the decedent owned prior to death and that is not subject to a specific devise, "I have 123 Smith Street to Jen Doe."

In a normal probate, all of the decedent's assets are liquidated, their debts paid, the the remaining funds distribute to the beneficiaries of the estate (heirs.) Exceptions do exist.

First, the beneficiaries may agree to an in-kind distribution of some or all of the property. Sometimes this requires that the heirs satisfy the decedent's debts if there are insufficient other funds available to clear the debts. But, for this to work all the beneficiaries must agree to the distribution plan.

Next is specifically devised property. However, sometimes this property must be sold to satsify the decedent's debts. Whether or not this property is sold depends on your state's laws, and most states provide a plan on how assets are sold. For example, in California an estate contains a specifically devised item of property and other assets, the specifically devised property is sold only if the other assets do not satisfy the decedent's debt.

Although this general answer is provided by an attorney, it should not be taken as legal advice regarding your particular situation and no attorney-client relationship is established. For help with your particular legal situation, please consult with an attorney.

Upon the death of the testator the Will must be presented to probate court for allowance and the court must appoint the executor. The court will generally appoint the executor named in the Will if one was named. If that person is deceased or declines to serve the court will appoint a successor. An interested party can request appointment.

Yes. Any person who has an interest in seeing the decedent's estate opened can force probate of the will or the grant of administration if there is no will. A person has an interest if he is owed money from the estate on a debt or because of a gift in the will or for any other matter that an executor/administrator might have to do. Sometimes this interest includes forcing probate in order to give or pay something to an estate as long as an executor is needed to accept the item or payment. There are different court procedures enabling an interested party to force probate, depending on the state involved.

If the property was held by two people as tenants by the entirety or as joint tenants with the right of survivorship the full ownership of the property automatically passes to the survivor. All you need to do is record a death certificate in the land records to show that the joint owner has died.

The person who will "acquire" the property must commence a probate proceeding in the probate court. That means you need to present the will for allowance and be appointed the executor or if there is no will you must petition to become the administrator of the estate. The only way for title to real property to pass to an heir is through probate court. You should seek the advice of an attorney who can assist you in this process.

You file the will with the probate court with a petition asking that the will be allowed and that you be appointed the executor. If there is a named executor in the will who has died or who does not want to serve you should provide proof to the court.

Certainly. The records have to be filed with the court and they are a matter of public record. The heirs may wish to hire their own attorney if they don't feel the executor is doing a proper job. They can petition the court to have the executor removed as well.

If a co-executor dies, the surviving co-executor becomes the sole executor. Papers issued by the probate court that state that there are two co-executors have to be changed to show that there is only one now. The procedure to do that is set by each particular court. You also have to see if the will says something different. Sometimes a person wants 2 or more people as executors at all times. That person might appoint coexecutors and provide that in the event of the death of one coexecutor another person shall be added.

They have the right to ask the court to do so. If they believe the current executor is not fulfilling their duties, they can request their removal. The court will evaluate the situation and may appoint a new executor.

Yes, the proper way to change the property ownership is through the probate process.

If she is sneaky enough to file a quit claim deed adding her name to the deed, while he is in the hospital heavily medicated, have him sign it and have a crooked attorney process it. Yes, she can

The executor is, by law, entitled to be paid for their time. The rate is often set by law and the probate judge has to approve the distribution. If they have properly documented their time, it is reasonable to bill the estate and collect it. This amount is separate from the amount they are to receive from the estate.