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.

4,874 Questions
Property Law
Estates
Probate

Can an executor remove property before probate?

The named executor or family can secure the property and must immediately file the will and commence the probate procedure. Until appointed by the court, an executor has no legal authority over the estate. If necessary, there is en expedited process by which a temporary executor can be appointed by the court until the executor can be appointed.

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Civil Lawsuits
Probate

What is a probate lawsuit?

It would be a lawsuit regarding a conflict arising from the probating of an estate.

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Probate

How long does it take to get your inheritance?

If you are named on the deceased will, it can take (from date of death to receiving your money),between 3 and 12 months. Probate happens in these steps Gather all information on bank accounts and assets (house, car) Set up a bank account in either the deceased name or estate executor's name Send letters and non photo copied copies of the death certificate to each company explaining who has died and where you want the monies transferring to (Some companies holding large amounts of money will want a certificate of Probate before they release) Fill in the HMCS probate form with approximate amounts of each asset and account An interview will be arrange where executors swear an oath, then you will have Probate. Send Probate certificate to each company that requires a certificate Money will be payed into the new bank account and then the executor is by law responsible for dealing out money to either any debts or whom ever is named on the will. From interview to having money in your account takes no more then 2 weeks

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Probate
Life Insurance
Estates

How Can a beneficiary view a will in probate?

Most states require that all beneficiaries receive a copy of the will when the probate process is started. If not, the will is public record once it is probated. Contact the court where the estate is being administered and ask for a copy.

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Estates
Probate
Power of Attorney

Does guardian of estate have more power than administrator of estate?

No. A guardian of an estate is the person appointed by the court to manage the property of a living person (the ward) who is incapable of managing their own property. The guardian's power and authority expire immediately upon the death of the ward but the guardian must file a final account with the court that details any assets that came in to the ward's estate since the last account and any that went out.

The administrator of an estate is the person appointed by the court who has the authority to settle the estate of the decedent, or the person who has died. The administrator has the responsibility and authority to file an inventory of the decedent's estate with the court and has the legal standingto file a motion to compel the guardian to file their final account.

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Estates
Probate

How can a beneficiary challenge 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.

291292293
Estates
Probate

Can a beneficiary force an executor to release monies left to them after all probate requirements have been met?

Yes. If the executor has refused to make distribution then you should complain to the attorney who is handling the estate and to the probate court immediately. They can be compelled by the court to act or they can be replaced.

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Probate
Deeds and Ownership

Do stepchildren have rights to the estate of their stepfather in California?

No. Not unless they were legally adopted by him and then depending on their ages and state laws.

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Estates
Probate

If a single parent dies intestate do the children have to file probate?

If the parent is the sole owner of any property at the time of death their estate must be probated.

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Estates
Probate
Debt Responsibility

How long after someone dies can bill collector demand money from an Estate in Ohio?

See the related section from the Ohio Probate Code:

(B) Except as provided in section 2117.061 of the Revised Code, all claims shall be presented within six months after the death of the decedent, whether or not the estate is released from administration or an executor or administrator is appointed during that six-month period. Every claim presented shall set forth the claimant's address.

(C) Except as provided in section 2117.061 of the Revised Code, a claim that is not presented within six months after the death of the decedent shall be forever barred as to all parties, including, but not limited to, devisees, legatees, and distributees. No payment shall be made on the claim and no action shall be maintained on the claim, except as otherwise provided in sections 2117.37 to2117.42 of the Revised Code with reference to contingent claims.

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Estates
Probate
Wills

Are Wills filed in court before the testators death in Massachusetts?

Generally, no. However, a testator may file their will in probate for a nominal fee where it will be safeguarded in the files until it needs to be probated. If a testator decides to take advantage of that service they should make it known to other family members that their will has been filed for safekeeping.

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Estates
Probate
Debt Responsibility

What are an heir's rights regarding the actions of an executor?

Executors and Heirs' RightsIf you do not agree with the executor, you may wish to hire an attorney to act on your or your families behalf. Heirs do have rights, but, as with most issues, heirs need guidance from someone. Attorneys are educated in all aspects of the law. Most specialize in something, be it Estates, Divorce, Accidents, Wrongful Death, etc.

More input from FAQ Farmers:

  • I would contact the probate court in the town your parent lived in, verify with them that it is the correct probate court and then see if the will has been probated. Sometimes small estates don't need to be probated, however they can be. See if you can petition the probate court to prove the will. The court will order that anyone having knowledge of a will, to produce it for the court. If that doesn't work, then your parent died intestate. The probate court can tell you what to do nonetheless.
  • Options available: (1) ask for special request of notice. (2) ask that the trustee be bonded. (3) verify the deed of trust (house) title of car. (4) show proof to the bank; look for unusual payouts. (5) try to get copy of credit report. DO NOT believe what you hear from a trustee.
  • An executor of a will has fiduciary duties under the common law, to act within the parameters of the testamentary document - to the letter! - and to do so always safeguarding each and every interest therein delineated. This means that not a dang thing can be changed, or withheld, or used to benefit ANYONE in ANY WAY (ESPECIALLY NOT THE THE EXECUTOR HERSELF!) without flat out breaking the law. If an executor pulls stuff, immediately the party wronged files suit civily for breach of the executory duties and pleads for immediate removal of the executor for this breach, alleges damages (whatever they might be), and asks the court to act quickly to appoint an interim executor (an uninterested, unbiased individual of the court's choosing who has experience in this sort of thing - usually a lawyer or big banker type) who will take the reins while the aggrieved party litigates the issue of the wrongdoing. Now, the judge may say, hey, I don't see anything untoward here, you have not shown me enough evidence in your plea to me that this executor did anything wrong, and could refuse to remove her. Generally, though, in a case like this, it's so obvious that the accused executor really did act wrongfully - why else would there be an appeal to the judge like this, and the whole will/trust/whatever will be be placed in the independently appointed trustee's hand until it is sorted out. I wish I could describe some of the wild, seminal lawsuits we all read in law school about this stuff- it can get very nasty indeed - he said, she said, etc. But the key thing is that the will or trust, assuming it is valid (a whole other story) reigns supreme, and there is no way an executor can fiddle with it.
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Parenting and Children
Estates
Probate

Should children or the surviving spouse be the beneficiary?

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.

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Law & Legal Issues
Probate
DIY Projects

How do you prove a person is incompentant?

Ask them to do simple tasks if you are working with them..if they can't because they suck then there is your answer

221222223
Civil Lawsuits
Probate
Debt Responsibility

If someone suing you is not willing to provide any documentation to back up their claims how likely is it they will win their case?

All plaintiffs have to prove their case to the satisfaction of the judge or jury. When someone is sued for a debt,information concerning the collection of the debt will already have been offered to the defendent. It would be in the form of a letter informing the debtor they have 30 days to request validation. They do not have to impart any other information until they appear in court. In cases of creditor suits they would not go to court without substantial proof.

In nearly every lawsuit other than small claims, you are entitled to conduct discovery. This can include depositions, submitting written questions that must be answered under oath and inspection of documents. If the opposing party refuses to produce the evidence, then you can bring a motion to compel and possibly sanctins. If some cases, refusal to obey the court's orders can result in dismissal of the case or issue sanctions.

221222223
Estates
Probate
Wills

Are all wills filed in the county probate dept and if not is there any official record of someones final will?

Yes. If a will is filed for probate it will be in the probate records. There is no other depository for wills in the US. If the will was not filed in probate then it is not available unless a family member or some other person in possession of an unprobated will agrees to share it with you.

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Probate

Is a will private after death?

No. The will must be delivered to the probate court and accepted, at which time it becomes a public record. The creditors get to be informed.

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Probate
Wills

What if an executor refuses to distribute the assets of an estate in a timely manner?

The beneficiaries should visit the court and complain to the court that appointed the executor immediately. The beneficiaries can file a motion for the court to compel the executor to perform their duties. The beneficiaries can also file a motion to remove and replace the executor.

189190191
Estates
Law & Legal Issues
Probate

Does a will override a trust?

Property that was transferred to a trust is not part of the estate of a decedent. A decedent's estate is comprised of all the property she owned at the time of death. Therefore, if the decedent transferred property to a trust while living that property cannot then be passed by a Will since it was not owned by the decedent at death.

If you are referring to a testamentary trust that is set forth in a Will then the will must be examined to determine if the executor has greater authority over the property in the estate. For example, a testator could make a few bequests and then direct the balance of their property, including real estate, be placed in trust with the trust provisions set forth in the will. However, the testator can also give the executor the power to sell any estate property without any license of the court. Thus, the executor could sell any property, including real estate, before it passes to the trust.

189190191
Banking
Math and Arithmetic
Probate

How much is 3 quarters of a million dollars?

$750,000 is three quarters, 500,000 is a half, 250,000 is a quarter.

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Estates
Probate

What is the repercussion for not filing the will in probate?

Each state has sanctions for any individual who is in possession of a decedent's will and withholds it from probate. Each state has a mandatory period during which the will must be turned over to the probate court or to the executor. If the estate must be probated as intestate, or without a will, the person who withheld the will will be held personally responsible for any damages suffered by any other devisee. It is against the law to withhold or destroy another person's will.

An example of the law in Massachusetts:

Chapter 190B: Section 2-516. Duty of custodian of will; liability

[ Text of section added by 2008, 521, Sec. 9 effective July 1, 2011. See 2008, 521, Sec. 44.]

Section 2-516. Section 2-516. [Duty of Custodian of Will; Liability.]

After the death of a testator a person having custody of a will of the testator shall deliver it within thirty days after notice of the death to a person able to secure its probate and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.

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Law & Legal Issues
Probate

Affirmative defenses in response to a complaint?

There are various, numerous affirmative defenses to any complaint. They are usually set forth in the civil procedure statute for each state. For instance, in Wisconsin, they are listed in Section 802.02(3) of the Wisconsin Statutes. In many cases, they must be plead initially (in the answer) or they are waived. Of course, most of the time the answer can be amended for a period of time as well.

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Estates
Probate

Your step father died. He and your mother had children together. Who are his next-of-kin and who will inherit his house?

In some states the surviving spouse inherits the property. In other states the property is shared by the surviving spouse and children. Step children are not heirs-at-law unless they were legally adopted. The answer depends on the laws in your state or jurisdiction. You can check those laws at the related question link provided below.

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Estates
Probate

Are you entitled to a copy of your estranged father's will?

If your father is living you are not entitled to a copy of his will. If he is deceased and his will has been filed for probate you can obtain a copy from the court. Once a will has been filed it becomes a public record.

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Probate
Wills

What is statutory inventory in a will?

The court appointed executor must file an inventory of the estate with the court. Once the debts have been paid and the remaining estate has been distributed the executor must file a final account to show the disposition of the assets that were reported in the inventory. The court will compare the two documents and either allow the final account and close the case or ask the executor to provide more information.

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