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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
Depends upon a number of factors. Was the child a minor when the will was executed? If so, probably not. And what was the amount? Hardley worth it for a few thousand dollars. What was the wording of the will? That can make a difference about how the money could be used. Consult an attorney, but I'd be thinking twice about suing my own parents, most juries aren't going to like someone suing their folks.
What is the Executor's fee from an estate in New York?
The commission rate in New York is fixed. For each Executor (there can be two, if more, they share the same amount as two would get) it goes like this:
- 5% on the first $100,000 in the estate
- 4% on the next $200,000
- 3% on the next $700,000
- 2-1/2 % on the next $4,000,000
- 2% on any amount above $5,000,000
The will can state that the executor must waive the fee, but this means that no bank or attorney will serve. It is only recommended if the executor will inherit from the estate.
What happens when your sister is the executor and she has spent some of your mom and dads estate?
These are only some of the things an Executrix can do:
Borrow off the amount in the Will that is solely left to them. They must provide the bank a copy of that Will before loaning any money. This means you get part of or all of the money due you sooner, but you must sign over your rights of that portion of your inheritance to in the Will to the banking institution.
Paying off gas/electricity bills, etc. Any outstanding medical fees can be paid off by the Executrix in this case.
An Executrix/Executor must provide receipts for every cent they spend and be accountable to the the Heirs in that Will.
I suggest your get yourself a lawyer and have him take care of this if you fear she may be spending too much money and not being accountable for this. You can also go to the lawyer that is holding your parent's Will and be sure you have proof your sister isn't spending money on needless things and thus, have her taken off the Will as Executrix. This Will then can be dealt with solely by the lawyer or by a Trust Company. Be sure you know what your fees are up front with either of these methods.
What do I do when my mom has died without money or a will but with a lot of debt?
If your mother died intestate (without a will) and she owned any property when she died her estate must be probated. Title to real property cannot pass to the heirs unless the estate is probated. The debts of the estate must be paid before any property can be distributed to the heirs at law.
If your mother left no property in her name then her creditors are out of luck. You should seek the advice of an attorney who can review your situation and explain your obligations, if any. Until you speak with the attorney you can notify any creditors of her death but do not pay any bills until you have had the benefit of legal advice.
Can probate court order the selling of real property?
Yes. In most jurisdictions the probate court (and other courts) has authority to handle matters concerning real estate. The most common situation in which the court would order the sale of real property would be a partition action.
How do you resign as Executor of a will?
United Kingdom
You will need to sign a Deed of Renunciation document. Note that this can only be done if you have not intermeddled in the estate affairs. If there are no other executors you should then hand the document to the main beneficiary who will then need be able to deal with and apply for probate.
Unites States
Generally once they have been appointed by the court an executor can file a resignation with that court if they cannot continue as executor. They must file a final account of their activity and the court will appoint a successor.
How is an estate established after one dies?
It varies greatly based on the size of the estate and the number of assets. A small estate can be resolved in less than 6 months. There are very large estates that are still in probate after several decades.
How would you apply for Letters of Administration for an intestate will in Ontario?
11. IF THERE IS NO WILL
An application is made by one of the next of kin to the Court to be appointed as Estate Trustee Without a Will for the estate. This person must be nominated in writing on the proper forms by at least a majority of the next of kin who are over eighteen years of age. A "probate fee" calculated on the same basis as set out above is charged by the Court. It may take several weeks to obtain the information, and it is often difficult to obtain the signed nomination forms from the next of kin. The Court takes two to five weeks to issue a Court Order appointing the applicant as Estate Trustee Without a Will.
If the applicant for Certificate of Appointment as Estate Trustee without a Will is not the surviving spouse of the deceased, the applicant must be bonded by an insurance company or by two (2) individuals.
The preparing of the documents and obtaining the bond and the Certificate of Appointment of Estate Trustee Without a Will are looked after by a lawyer or law clerk.
Without a Will, the estate is distributed in accordance with the Succession Law Reform Act which distributes the assets in accordance with a government formula.
Assets of which a surviving person was a joint holder with the right of survivorship or which have a named beneficiary, such as life insurance policies, go to that person automatically. Intestate Succession When a will disposes of all a person owns, no intestacy occurs. However, when no valid will exists or when a will does not dispose of all the testator's assets, succession follows according to certain rules. Here is a table of the rules: Survivor Distributions If a spouse All to the spouse If a spouse and one child Preferential share ($200,000) to the spouse, remainder split equally between the spouse and the child If a spouse and two or more children Preferential share to spouse plus one third of remainder, two thirds divided between children If no spouse and one or more children alive Children share equally: If one child is deceased, but has children, those children get their parent's share equally (representation) If no spouse and no children, but grandchildren Grandchildren share equally regardless, no representation. If none of above and a parent is alive Parents share equally, or if only one parent, parent gets estate absolutely If none of above, and at least one surviving brother or sister Brothers and sisters share equally with representation. If none of above and at least one niece or nephew Nieces and nephews equally with no representation. If none of above Next of kin of equal degree of consanguinity to the intestate equally without representation, degrees of kindred shall be computed by counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree. If none of above Her Majesty the Queen (escheat to the Crown) A will is not invalid only because it is witnessed by a beneficiary, but the gift to the beneficiary becomes void. A will is also not invalid only because it is witnessed by an executor. Moreover, the executor's appointment is still valid although a gift to an executor would not be.
How long to settle uncontested estate probate?
About 4 to 6 months if there are no problems with creditors and there are more assets then liabilities.
What are letters of Testamentary?
A letter of testamentary is a court document that identifies the executor of an estate.
Does a divorcee have a surviving spouse?
No. Not unless she remarried after her divorce and was married at the time of her death.
No. Not unless she remarried after her divorce and was married at the time of her death.
No. Not unless she remarried after her divorce and was married at the time of her death.
No. Not unless she remarried after her divorce and was married at the time of her death.
Is the executor responsible for the lawyers fees?
The estate is responsible for attorney's fees. The executor is responsible to pay the debts of the estate before any property can be distributed. If the executor mishandles the funds they will be personally liable.
Do the children of a deceased father have a right to view the will?
As soon as the will has been filed in probate it becomes a public record. You can go to the probate court where the will is filed and ask to review the file. You can then request a copy of the will (or any other document in the file) or make a copy at the public copier if one is available. As the probate procedure progresses you can monitor the file periodically for new filings such as inventories and accounts.
Does the executor of the will have the right to sell the estate?
Once you have been appointed executor by the court you can sell the property under certain circumstances. Assuming the real estate was not specifically devised in the will, generally, if you were given authority to sell the real estate in the will you may sell without license of the court. If the authority was not granted in the will then you will need to apply for a license to sell the real estate.
If a quit claim deed is filed in the state of Michigan after death of sole owner is it legal?
If it's a legal quit claim, and the owner signed it before their death, yes. I would look into Michigan's law to see if there is a time limit to file a new quit claim, but I doubt there is. A quit claim has to be notorized and witnessed, so it would be obvious if you where trying to fraud someone, or if the owner had actually signed it.
Can executor and beneficiary be the same?
Yes, that is often the case when a spouse dies. It saves the estate money.
What to do next after a will is in probate?
Publish a notice to creditors in a local paper, prepare an inventory of the decedent's assets, pay the decedent's bills, file appropriate tax returns, distribute the decedent's assets to beneficiaries.
ADDED: The above answer is correct and describes accurately what you must do if you are the executor/executirx of the will. If you are not the executor/ix of the will but believe you are a named heir, you will receive a notice from the probate court advising you when and where to appear for the final hearing.
ADDED: In some states, you will NOT receive any notice from the probate court at all. All notices are published, meaning that they are posted on a bulletin board at the courthouse.
Does a will have to be probated in the county of death or residence?
Where a will is probated (called venue) with depend on your state's law.
In California, the proper venue for probate of a will is the county of the decedent's residence or any county where the decedent owned real property.
Sometimes, a will is probated in more than one state. This occurs where the decedent owned real property in more than one state, say California or Nevada. This is required because only a court located in the same state as the real property may make valid orders as to that property.
In this case, a primary probate is opened in one state. This is where most of the work of administration occurs and where the will is "admitted" (think validated) by the probate court.
A second probate, called the ancillary probate, is opened in .the other state. This ancillary probate only deals with the property of that state, either transferring it to the designated heirs or liquidating the property and transferring the proceeds to the administrator of the primary probate for final distribution.
Due to the full faith and credit act, one the will is admitted in the state of primary probate, it cannot be later attacked when used to open the ancillary probate.
Another situation is where the decedent died in one state, say California, but only ones real property in another state, say Oregon. Here, the will normally needs only to be probated in the state where the real property is located, possibly avoiding the need for ancillary probate. There is a bit of a decision on where to probate the will. Cost, time, the administrator's state of residence, and court rules and regulations all come into the decision and an attorney should be consulted.
You can see that this system can become complex and not cost effective for persons owning property in more than one state, which is why living trusts are used in these situations.
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.
Can the executor take property from the estate for their own use?
The executor is required to execute the terms of the Will. If the Will leaves the assets to the executor, then yes. If not, then no. Exception: executors are entitled to reasonable compensation unless the Will prohibits it.
What if the lawyer is executor?
As in most things this has no simple answer. The short answer is yes, the fact that an executor is also an attorney does not disqualify him. And of course it is quite common for children to be named as executors.
But being a lawyer does not necessarily make someone the best choice as Executor. Being the executor of an estate may be seen by many people as an "honor" but in reality it is a very large responsibility and can be a lot of work. Having the time and energy to do that work is an important qualification for an executor, along with honesty, fair-mindedness, knowledge of the assets of the estate, and a willingness to be bound by the wishes of the person who wrote the will. Does the son get along with the other heirs to the estate? If he doesn't you could be setting him up for all sorts of conflict with those other individuals. A more congenial person may be a better choice. In addition, although the lawyer executor may know about probate and estate work, an executor who is not legally trained can easily get professional advice on these issues.
What percentage of pay can executor get?
It will depend on the will and/or the laws of the state. In most cases it must be 'reasonable' given the work being done. Some courts have said that 3% is reasonable, but cautioned that it needs to be determined on a case by case basis.
No. A joint account has the benefit of survivorship. That means if one owner dies the account becomes the sole property of the survivor bypassing probate.
Can you contest who is executor of a will before it is probated?
Certainly you can contest it before and even during the probate period. The court is then likely to appoint a neutral party as the executor. They usually go with an attorney or a bank.
AnswerGenerally, when a will is presented to the probate court to be proved and allowed the person making the petition is also petitioning to be appointed the executor. The court will order that notice be provided to all interested parties by mail and by publishing. If any wish to object to the allowance of the will or the appointment of the executor they must pay close attention to the date of the hearing stated in the notice. Objections must be made within a certain time period that varies from state to state. The court will hear the objection and render a decision. Once the period for objection has passed and the executor has been appointed it is too late to object to the appointment of the executor.
Is there a time limit for an estate to go through probate from the time an executor is named?
Actually, that requirement is usually addressed by state laws that may vary from state to state. An example of the law in Connecticut is as follows:
- The custodian of the will or the executor must collect the will and any amendments to the will, called "codicils." Any person who has custody of a decedent's will must deliver it to the executor or the probate court within 30 days of the death of the decedent. The purpose of this rule is to expedite the start of the probate process.
Can you decline your fee as an executor?
Yes. Most, if not all, states allow an executor to waive their fee. This is common where the executor is also an estate beneficiary, as the fee is taxed as income to the executor.
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.
