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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 you borrow against your trust fund?
This can vary based upon the conditions of the trust fund and the procedures of the lending agency. In general, for all but the most pressing of emergencies, such is a bad idea.
Consult with the firm that manages the trust. They will have more specific information for you.
What is the legal age when you are no longer considered a minor?
It is called the age of majority. In most places it is set at 18, but can be as high as 21 depending on the state or country. Until then an individual is not considered an adult and cannot enter into contracts.
The wording of the will shall specify. If there is no will, the intestacy laws will apply.
Does the appointed Executor need to be a resident of state where Will is probated?
It is not a requirement in most cases. The state may require a bond for the executor.
Generally, all children have the same rights, whether born within wedlock or not. The issue may be one of proving your status as a child of the mother, but you are an equal to the "legitimate" child. The terms "illigitimate" and "legitimate" children are no longer in use, by the way.
Do you have to use an attorney to probate an estate?
The short answer is "no." In most (if not all) US states, a lawyer is not required to draft a will. The rest of this is my opinion: If the will is not a complicated one, doing it yourself is not very hard. If the difficulty is higher, you may wish to still do it yourself, but it will take some time. If the will is complicated, find a competent estate planner and estate lawyer. If you don't know all of your state's verbiage that needs to be included in the will that you want to draft, get a lawyer. If you are willing to take the time to learn the verbiage that must be included, there are resources to help. If you don't know how you would like to make it work, or do not know the best way to protect the most stuff, find a competent estate planner. Once again, if you are willing to take the time to learn how to do it, there are resources to help. I would recommend to not go to a lawyer to learn how to structure the will, nor would I go to an estate planner to get the will's verbiage. It is the lawyer's job to make sure the will holds up in court, should it be challenged. It is the estate planner's job to make sure the money and assets go where you want them to. It is both the lawyer's and the estate planner's job to make their employer money. In some instances, they can save you money and heartache.
If there is a will do you still need to probate?
Yes. The will must be examined by the court to confirm its validity and the executor must be appointed by the court. Real estate and property owned solely by the decedent must be probated in order for title to pass to the beneficiaries. The debts of the decedent are paid first.
Can executor live in real property without paying rent to estate?
The executor has no legal right to live there rent-free, but this will depend on the probate laws of the state of probate. It is a tricky practical question because there are benefits and detriments to having the executor live in the house rent free.
Begin with the idea that an executor entitled to complete possession of all estate property during administration but is not allowed to use estate property for personal gain Also, executors must use assets of the estate to reasonably maximize income prior to distribution. Taking those at face value the answer is that the executor has no right to live there rent-free. Living rent-free is using estate assets for personal gain and not earning income. Theoretically it could be rented short term to someone other than the executor and the house would earn income. But renting houses on a short term basis is not recommended and usually not done because tenants may refuse to leave and have to be evicted through the courts. Or they may damage the house.
In the real world though it sometimes happens because there are benefits to having someone in the house rather than leaving it vacant. A vacant house costs more to insure than a house with a resident, so the estate saves on insurance. Another benefit is prevention of possible damage in case a fire starts or pipes freeze or vandalism occurs or contents are stolen or even if squatters break in. A person living there would be able to prevent serious damage.
The problem with those benefits is that aside from the extra cost of insurance, they cannot be quantified to see if they are worth more than not renting the place out. For this reason, it is generally held that an executor has no inherent right to live in the estate house rent-free. But the alternative is to pay higher insurance rates and perhaps pay to board up the house. Either way the estate will incur some expense to preserve the house. For this reason, everyone usually gets together and agrees on some compromise.
The executor might be the spouse of the deceased, and the property might be the house in which the executor lived prior to death - back to the question of practicalities
How do you become an executor of an estate and not a will?
An executor is the person who carries out the provisions in a person's will. An estate is the property owned by a person at the time of their death. If a person who died left a will the person appointed by the court to carry out the provisions of the will is the executor of the estate.
When a person dies without a will (intestate) the court will appoint an administrator of the estate.
Can the executor sell the house without permission from the beneficiaries if there isn't a will?
That is one of the responsibility of the executor, to liquidate the assets of the estate and divide them according to his/her interpretation of the intention of the will. The executor need not ask permission of any other siblings so long as the results are anything near the original intent of the will. The executor is required to provide a full inventory and accounting to the probate court as part of the final settlement.
No, not unless you are otherwise liable for the debt. Surviving a decedent has nothing to do with liability. However, if you had an obligation to support the decedent, you may be liable for that person's "necessaries." If you are the decedent's surviving spouse in a community property state, your half of the community property might be liable for the debt, but you, personally, would not be liable. The person's estate (if any) would be used to pay creditors in a specific order, but that assumes the creditor will take the steps necessary to enforce the debt.
EDIT TO ABOVE: Depending on your state, the surviving spouse may be liable for a decedent's debt, even if it was in the decedent's name alone. It really depends on the laws of your state. However, state laws may also place a limit on the liability of the surviving spouse.
How do you change title on property at death?
The fact that there is a car to be transferred means there is an estate. By this I mean there is an asset in the name of the decedent alone and that asset constitutes the estate of the decedent. If no one has come forward or wants to come forward to probate a will or to have letters of administration granted to begin estate administration, then the person who is legally entitled to the car has a right to apply to the probate court for probate of the will (if there is one) and for appointment of an executor. That person also has a right to apply for letters of administration if there is no will. The rule here is that if a named executor does not want to do anything or if the family members entitled to be administrators do not want to do anything, then any person with some interest in the estate may apply to the probate court for appointment of the appropriate type of personal representative who will have the power to transfer title.
Additional InformationIn most jurisdictions there is a simplified procedure for small estates. In Massachusetts it's called a Voluntary Administration and is used specifically to transfer ownership of a car. It is quick and inexpensive and does not require all the filings and expense of a regular probate process. Even if the decedent had a will it can be filed with the VA if there is no other property in the decedent's name. Check with your local probate court for the simplified probate procedure in your jurisdiction.If there is other property in the name of the decedent and it's not a small estate then his estate must be probated. The property will pass according to the will or the state laws of intestacy if there is no will. Once an executor or administrator has been appointed they will have the authority to transfer the title to the appropriate person.
How do i file a petition to start a probate case?
The easiest answer is to contact a probate attorney in your area. Otherwise, you can go to the county courthouse and ask the clerk for forms. They cannot provide legal advice though, so your best contacting an attorney to handle this. There are a lot of deadlines and specific procedures that must be followed.
Will the house go into probate if one spouse dies and both names are not on it?
Generally, yes. Any estate that holds real property must be probated in order for title to pass to the heirs. However, laws vary in different jurisdictions. A surviving may have special rights in community property states.
In separate property states the property will pass according to the provisions in the decedent's will or according to the state laws of intestacy if there is no will. In many jurisdictions the surviving spouse will inherit the estate, however, that scheme is not universal. In some states the children receive a share of an intestate estate especially when the surviving spouse is not their parent.
You need to consult with an attorney in your jurisdiction who can review your situation and explain your options.
Does the executor have to do everything the will instructs?
The court appointed executor has the authority to make all decisions to carry out the provisions of the Will and take all other actions necessary to pay debts, distribute property and close the estate. See link for a listing of all the duties of the executor:
http://estate.findlaw.com/estate-administration/checklist-the-executor-s-role.html
In general, next of kin is determined by the closeness of the degree of kinship one person is to another. Look at it as the usual family tree. For example, a child is one degree removed from the parent while a grandchild is two degrees removed and so on down the line of descendants. A parent is one degree removed from a child while a grandparent is two degrees removed and so on up the line of ascendants. Siblings are two degrees removed; one degree up to the parent and one degree down to the child from the parent. (One degree up and one down.) All states have statutes the specify the exact process and some may have minor variations. For legal matters like inheritance, usually, "next of kin", means descendants first before ascendants. So, generally, even though a child and a parent of the same person are the same one degree apart, the child is considered next of kin over the parent.
Can an executor be listed as a beneficiary?
Yes, and they frequently are as in the case of the standard husband and wife will, where each spouse leaves the entire estate to the other spouse and names that spouse the executor.
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.
