You have no doubt heard that probate is a very complicated, time-consuming, and expensive proposition. To some extent it can be all these things, but with proper handling these drawbacks can be minimized.
Having trusted, experienced counsel is invaluable following the death of a loved one. The prospect of gathering appropriate information, drafting and filing appropriate documents, court appearances, identifying and paying creditors, and distributing assets to grieving beneficiaries is daunting. Without appropriate guidance, deadlines may be missed and estate assets that would be distributed to beneficiaries may end up being redirected to legal fees.
Contact Mark Maltsberger for a free consultation and discuss your options for probate.
Most probate cases are handled as independent administrations in order to avoid increased costs and court involvement. Usually, an independent administration is created because the Will states that an Independent Executor can be appointed. An independent administration can also be created when the Will is defective in some regard or when the decedent dies intestate, as long as the beneficiaries or heirs agree to this procedure. However, an independent administration should not be used if there are creditor problems, feuding beneficiaries, or difficult assets.
A personal representative named in a Will that is admitted to probate, and who serves in the capacity stated in the Will, is called an “executor”. Any other personal representative will be called an “administrator”. An Independent Executor is not subject to the supervision of the court. The only tasks required of an Independent Executor are to:
- Notify general and secured creditors
- Notify beneficiaries named in the Will
- File an Inventory, Appraisement, and List of Claims
An Independent Administrator has exactly the same duties unless a bond was posted. If a bond was posted, the Independent Administrator must file a closing affidavit in order to be released from the bond.
A dependent administration is a court-supervised administration and may be created in any probate situation, including:
- Whether the decedent died testate or intestate
- Even where the Will calls for an independent administration, or where an agreement between the beneficiaries for independent administration is obtainable
A dependent administration may be preferable if there are creditor problems, feuding beneficiaries, or difficult assets. Since the dependent administrator is subject to court supervision, no task can be undertaken unless it has been approved in advance.
Court supervision can be burdensome, and thus a dependent administration is more expensive than an independent administration. However, the court approved actions of a dependent administrator are insulated from attack by creditors and beneficiaries.
Muniment of Title
A Will can be probated as a muniment (or record) of title if the decedent dies testate and the only unpaid debts are those that are secured by liens on real estate. With a muniment of title, there is no administration of the estate. In fact, though the applicant may be the person designated in the Will to serve as the personal representative, the court does not appoint an executor or administrator. The probate process is completed at the hearing to admit the Will. Since there is no personal representative, there is no requirement to notify creditors, to notify beneficiaries, or to prepare and file an inventory.
This type of “short-form” probate will not work if the estate is subject to federal death tax or if there are assets that cannot be transferred to beneficiaries without the involvement of an executor. Moreover, if it is necessary to file a final income tax return for the decedent, a Muniment of Title proceeding should not be chosen since there will be no one authorized to sign the return.
Determination of Heirship
If the decedent dies intestate, whether the intestacy is complete (no Will) or partial (a defect in the Will), it is normally necessary to have the court make an official determination regarding the identity of the heirs. There is no deadline by which this procedure must be initiated following the date of death. However, if this procedure is commenced within four years from the date of death, the applicant may request that the court also appoint an administrator and open an administration. After the four-year mark has passed, no administration can be opened.
A certified copy of the order declaring heirship can be recorded in the deed records of any county where the decedent owned real estate. Once it has been recorded, it immediately becomes constructive notice of the facts stated therein and can be used immediately as evidence in a judicial proceeding.
Affidavit of Heirship
The affidavit of heirship proceeding is a cheaper and quicker alternative to a judicial determination of heirship. The situations in which the use of an affidavit of heirship is available are described by statute. The Probate Code contains a prescribed form for the affidavit. Unlike the determination of heirship procedure, which is effective as of the date the court signs the judgment, an affidavit of heirship does not become prima facie evidence of the facts stated in it until five years after its recording in the deed records of the county in which the real or personal property of a decedent was located.
An affidavit of heirship can be used whether the decedent died testate or intestate. It must be signed by a disinterested person and sworn before a Notary Public.
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