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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
What is a reasonable executor fee?
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.
Can a person refuse to be a joint executor of a will?
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.
Is it heirs-at-law or heirs at law?
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.
Do heirs have rights to use property that is in probate?
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.
Who becomes executor of will when original executor dies?
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.
Can a property be forced on a beneficiary?
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.
Are Joint Tenants with a right of survivorship the same as Tenants In Common?
No they are different types of real property co-ownership. Tenancy in common is a type of co-ownership where two or more people ("tenants in common") own the property. It is the default tenancy in many jurisdictions when the tenancy is not stated in a deed with multiple grantees. Tenants in Common:
- Can own the property in equal or unequal shares
- Have the right to the use and possession of the whole of the property
- Pass on their share of the property to their heirs when they die
In a joint tenancy the desire to create a joint tenancy with the right of survivorship must be so stated in the deed. The interest of any deceased joint tenant passes automatically to the surviving joint tenants. A joint tenancy is created only if the following four conditions, called the Four Unities, are met:
- Time- All the tenants acquired their interest at the same time.
- Title- All the tenants have the same title.
- Interest- All the tenants have an equal share.
- Possession- All tenants must have an equal right to possess the property.
How do you take someones name off deed of house after they had passed away?
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.
Who is responsible for property if the owner dies?
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.
How do you become a court appointed executor?
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.
I am named as a co-executor. what happens if co-executor dies?
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.
Can heirs remove executor without notice?
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.
If you have a will and deceased owned a house that you live in does it have to go to probate?
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
Can executor who is also a beneficiary get an advance payment from the estate?
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.
What rights do children have in the estate of a remarried parent who died without a will?
Assuming there is no Will in place which excludes the child from the parents estate, and depending on the existence of other parties with interests in the estate [i.e..brothers,sisters, others ] the distribution of the deceased's assets is dealt with by the intestacy law of the state in which the deceased dies and the estate is opened.
The rules of "descent and distribution" (which is the terminology used to describe the process by which property passes when there is no Will), vary from state to state and are based upon state, not federal, law. These rules outline the rank order of persons (heirs) who have a claim to the estate, and the process by which creditors of the deceased can make claims against the assets. In that regard, the heirs are generally not personally liable liable for the payment of the deceased's debts (unless they contracted for that liability), but a valid claim of a creditor properly and timely made, can deplete the assets of the estate such that there is less to distribute to the heirs.
The child will have to file his/her claim with the court/trustee/administrator/attorney handling the estate. States have separate courts that deal with probate-sometimes called "Probate Courts", and sometimes known by another name.
The ultimate amount that a child will receive will depend upon factors such as the total amount of assets in the estate, the number of beneficiaries and the nature of their relationship to the deceased (for example, a surviving spouse often gets the bulk of the estate) attorney's fees, and court costs. In larger and more complex estates, accountant's fees may become an issue, as would taxes of various sorts.
Do executor's fees have to be approved by court?
Yes they do have to be approved. In most states there are standard fees and charges established. If the charges are within the guidelines, the court will normally approve without challenge.
How old do you have to be to make a will?
Generally you must have reached the age of majority in your jurisdiction. In most states that would be eighteen years old.
Generally you must have reached the age of majority in your jurisdiction. In most states that would be eighteen years old.
Generally you must have reached the age of majority in your jurisdiction. In most states that would be eighteen years old.
Generally you must have reached the age of majority in your jurisdiction. In most states that would be eighteen years old.
Is ny considered recognized as a common law state?
"Currently, only 9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the District of Columbia recognize common-law marriages contracted within their borders. In addition, five states have "grandfathered" common law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common law marriage only for purposes of probate, and Utah recognizes common law marriages only if they have been validated by a court or administrative order."
How do you relinquish rights as an executor?
If I own an equal amt.of property as the executor of the estate and he is taking things what are my rights? He will not allow me into the house without him, but he is going in and removing items when I am not there?
How do you avoid probate in my will?
You can't avoid probate by having a Will. You can avoid probate by not owning any property at the time of your death. That takes planning such as listing beneficiaries on all your accounts and insurance policies, and transferring your property to an irrevocable trust while you are living. If you want to avoid probate then you should make an appointment with an attorney who specializes in estate planning who can review your situation and explain your options.
How do you become a legal guardian for your child to sell property in Ohio?
You already are the legal guardian of your children. Until they reach the age of majority, you are responsible for their property. You may need a probate court approval to sell something that is in trust for them.
Does community property end at death?
No. Community property doesn't "end at death". Community property laws affect the distribution of a married decedent's estate after their death. In a community property state your surviving spouse is entitled to one-half of any property you acquired during your marriage. Each party owns a one-half interest in any property acquired during the marriage by either party no matter whose name is on the title. A married decedent can give away one half of their property to anyone they wish by their will but their spouse will receive the other half by law after their death according to the laws of community property.
Once the estate has been probated the property inherited by the surviving spouse becomes their sole property.
The following are community property states:
- Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska (although in Alaska, there must be a written agreement between the spouses). All of the remaining states follow common law.
