Probate Glossary and FAQs

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Glossary and FAQs

Probate and trust sales have a vocabulary all their own. Here is what you need to know.

IMPORTANT NOTE: Please be aware that the information on this page is delivered without warranty or guarantee of accuracy. It’s provided to help you learn more and formulate specific questions to discuss with your attorney and/or your Real Estate Professional and/or to help a personal representative, executor or executrix when executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for information only and that you are hereby advised that any decisions regarding probate issues should be discussed with an attorney and/or a Real Estate Professional.

Glossary

Abatement: A proportional diminution or reduction of the pecuniary legacies, when there are not sufficient funds to pay them in full.

Ademption: When property mentioned in a will cannot be given to a beneficiary because it no longer belonged to the deceased at the time of death. For example, the particular gift may have been destroyed, sold, or given away between the time of the will and the time of death.

Administrator: A person or institution appointed by a court to act on behalf of the deceased person in connection with the administration of a decedent’s estate.

Administrator with Will Annexed (for Administrator CTA): An administrator appointed by a court to act on behalf of the deceased person who left a will, but where no nominated executor is willing and able
to act.

Affidavit: A written statement or affirmation made under penalty of perjury that requires notarization.

Ancillary Administration: An administration of a decedent’s property located in a state other that the state of the decedent’s domicile.

Beneficiary: The individual or corporation who receives the benefit of a transaction (e.g., beneficiary of a life insurance policy, beneficiary of a trust, or beneficiary under a will.)

Codicil: An addition to a will, the codicil may modify, add to, subtract from, qualify, alter, or revoke provisions in the will. The codicil is a separate document. It is signed with the same formalities as a will. The codicil can be changed, revoked, cancelled, or destroyed at any time

Community Property: Real or personal property that is owned in common by husband
and wife as a kind of marital partnership. Either spouse has management and control of the community real and personal property; however, both spouses must join in a transfer of ownership or lease for more than one year of community real property or a gift of community personal property. All property acquired during marriage from earnings, and the earnings themselves, are community property. Property
acquired by gift or inheritance is separate property, not community property.

Conservator: The individual or corporation who legally has charge of the care and management of the person, property, or both of an adult who is unable to provide for his own personal needs or who is substantially unable to manage his financial affairs. Limited conservatorships may be established for developmentally disabled adults.

Contingent Beneficiary: One to whom distribution is dependent upon the occurrence of
an event.

Declaration: A written statement made under penalty of perjury.

Devisees and Legatees: Persons named by a decedent in his will. A bequest or devise
generally refers to real property and a legacy of money or personal property.

Disclaimer: A refusal to accept, for example, a testamentary gift that is made in a prescribed manner

and time.

Domicile: The specific location of a person’s permanent residence that determines, for many purposes, the laws that will govern his affairs. A person may have many residences, but he can have only one domicile. The domiciliary proceeding is that created in the jurisdiction of the decedent’s domicile.

Donee: A person who receives a gift from another.

Donor: A person who makes a gift to another.

Escheat: The term which describes the reversion of property to the state in the event a person dies leaving no valid will and no heirs at law surviving him.

Estate Taxes – Federal: The death taxes imposed the federal government on the transfer of assets upon death.

Executor: The individual or corporation appointed in a will by a
testator to take care of the testator’s property after his death. Also called a personal
representative.

Ex Parte: A judicial proceeding granted without notice.

Fiduciary: A person charged with a high degree of care who acts on
behalf of another. Executors and trustees are fiduciaries.

Grantor: The individual or corporation who makes a grant (transfer) of property to another person (e.g., grantor of a trust, grantor of a deed of property).

Guardian: The individual or corporation who legally has charge of the care and management of the person, property, or both, of a child during his minority.

Heir: The person who inherits property under state law.

Inheritance Taxes: The taxes imposed, according to the relationship to the decedent, on the person who receives the property.

Intestate: Refers to someone who dies leaving no will.

Inter Vivos Trust: A trust created “between the living.” The grantor (trustor) is a living person. An inter

vivos trust can be either revocable or irrevocable.

Irrevocable Trust: A trust whose terms and provisions cannot be changed, modified, altered, amended, or revoked.

Joint Tenancy: A form of property ownership by two or more persons, often designated as “joint tenants with right of survivorship.” Joint tenants always own equal parts of joint tenancy property. When a joint tenant dies, his or her interest in the property automatically goes to the surviving joint tenant.

Life Estate: An interest in property, the term of which is measured by the life of its owner.

Life Tenant: The person who receives the benefits from the real or personal property during his lifetime only. The benefits stop when he dies.

Minor: A person who is under the age of legal competence.

Personal Representative: This term describes an executor or administrator.

Power of Appointment: The actual power of legal authority given by the trust or will of one person, the “donor” of the power, to a second person, the “donee” of the power, which enables the second

person to designate the manner of disposing of the property. A power of appointment may be general or special, as defined below:

General Power Enables the donee to designate himself, his creditors, his
estate, the creditors of his estate, or any other person, as owner of the subject property.

Special Power Limits the done as to the persons to whom he can designate as owners of the property over which he has a power of appointment. The limitation of appointment can be very specific (e.g., to a group consisting only of A’s children) but can never be the done, his estate his creditors, or the creditors of his estate because this would defeat the purpose of the special power, namely, to keep the appointive property from being taxed in the estate of the donee on his death.

Pour-over will: A will that provides for the transfer, after or during the probate court proceedings, of all or part of the net assets of a decedent’s probate estate from the executor’s control to the control of a trustee who is in charge of a trust that was in existence immediately before the death of the deceased person (inter vivos trust).

Pretermitted Heir: One who would normally be beneficiary of the decedent but
who is not mentioned in the will.

Probate Administration: The legal process whereby a probate court supervises the marshalling of a deceased person’s debts and taxes and orders the property distributed according to decedent’s will, or in its absence, to the deceased person’s heirs. The probate court has jurisdiction over the personal representative and the decedent’s assets.

Quasi-community Property: In California only, that property acquired by a decedent while living outside California, which, if acquired in California, would have been community property. For federal estate tax purposes, quasi-community property is treated like separate property.

Real Property: An interest in land or property permanently affixed to land.

Remainder Interest: An ownership interest in property that will become a present interest after the present owner or life tenant has received all the property benefits to which he is entitled.

Residue: The remaining part of a decedent’s estate after the payments of debts and legacies. Also called “residuary estate.”

Residuary Beneficiary: One to whom all or part of the residue is distributed.

Reversionary Interest: An ownership interest in property that returns to the original owner when the intervening interest expires.

Revocable Trust: A trust whose terms and provisions can be changed, modified, altered, amended, or

revoked.

Right of Representation: A method of distribution, sometimes referred to as “per stirpes,” whereby the share of distribution of a deceased beneficiary is divided equally among his children.

Separate Property: In California, a category of property between husband and wife that is not community property or quasi-community property, but that is owned separately by the husband or wife.

Settlor: Another word for grantor or trustor of a trust. The person who “settles” the assets into the trust.

Tenancy In Common: A form of holding title to real or personal property by two or more persons. Because there is no right of survivorship, the legal relationships and results are very different from joint tenancy. Tenants in common need not hold equal interest, and on the death of a tenant in common, his interest will pass by his will or according to the laws of intestate succession.

Testamentary Trust: The trust that comes into being only as a result of the death of a person whose will provides for the creation of the trust after his death, hence, the term “testamentary.” Once in existence, this trust is irrevocable.

Testate: Refers to someone who dies leaving a will.

Testator: The person who signs the will that disposes of his property; testatrix is the female term. It is common as a convenience to use the term testator for either a man or a woman.

Totten Trust: A form of revocable trust, usually a bank account, that allows distribution to the beneficiary upon the death of the trustee, without the need for probate of the asset.

Example, John Jones as Trustee for Mary Jones.

Trust: A legal entity established either during a trustor’s lifetime (inter vivos) or at his death (testamentary). The trust is governed by the terms set forth in the trust documents. A trust must have a trustee, a beneficiary, and a “corpus” or property subjected to the trust.

Trustee: The individual or corporation who in a trust has bare legal title to the assets and has the power given in the trust to carry out the wishes of the person or persons (trustor or trustors) who created the trust. The trustee has a fiduciary obligation to the trust’s beneficiaries enforceable in court if not carried out. The trustee is subject to strict regulation. Although he has legal title for convenience, the beneficial or equitable title is in fact owned by the beneficiaries. When there is more than one trustee, the trustees are called co-trustees.

Trustor: The person or persons who establish a trust. There can be more than one trustor.

Uniform Gifts to Minors Act: A law that permits a person (“donor”) to register stock, bank accounts, or insurance in the name of another (“custodian”) for the benefit of one who is at the time a minor (“beneficiary”) without preparing a formal trust document. In effect, the trust document has been written into the law. In so doing, the donor makes an irrevocable gift of the property to the minor, but the custodian holds, invests, reinvests, and applies the property for the benefit of the minor until his
majority, at which time the property is turned over to the beneficiary. This is a simple, inexpensive way to make small gifts to a minor.

Will: A document, prepared and executed by a person with the formality required by the laws of the state of his domicile at the time, which is intended to govern and direct the disposition of his estate and settlement of his legal affairs at the time of his death and which has no legal effect until his death. If the document is entirely in the person’s own handwriting, it is called a “holographic will.” If a will is typed, it is called a “witnessed will” because the signing of it generally requires two or more witnesses to testify later, if necessary, that the execution was not procured.

IMPORTANT NOTE:
Please be aware that the information on this page is delivered without warranty or guarantee of accuracy. It’s provided to help you learn more and formulate specific questions to discuss with your attorney and/or your Real Estate Professional and/or to help a personal representative, executor or executrix when executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for information only and that you are hereby advised that any decisions regarding probate issues should be discussed with an attorney and/or a Real Estate Professional.

Get our Expert Advice Every Step of the Way!

Request a Phone Call

Probate FAQs

What is Probate? Probate is the legal procedure in which an estate is settled, debts are paid, and assets are distributed to beneficiaries or heirs.

General Probate

Probate is the legal procedure in which an estate is settled, debts are paid, and assets are distributed to beneficiaries or heirs. Click on each of the FAQs to learn more.

General Probate FAQs

What is Probate?

Probate is the legal process used to settle an estate, pay off debts, and assign assets to heirs or beneficiaries. To initiate the probate process—which is managed by the state's probate court—one must first establish the validity of any will, if any, and then name an executor to manage the estate until a settlement is reached.

How does the probate process work?

States have different processes for probate. Certain states also offer a streamlined probate procedure for modest or straightforward estates. As a general rule, however, probate typically entails a number of procedures meant to authenticate the will, guarantee that its directions are followed (should one exist), settle estate debts, and allocate any remaining assets to the heirs and designated beneficiaries.

Typically, probate goes through the following procedures:

If there is a will, it is submitted to the probate court.
A notice of Petition for Probate is published and a personal representative is appointed. After that, the executor or administrator formally requests that the court probate the decedent's estate.
For a certain amount of time, creditors may file claims against the estate.
The personal representative locates and collects the estate's possessions. These resources need to be preserved and protected.
When required, assets are liquidated to pay valid claims against the estate.
The personal representative files a final tax return.
A final petition is filed with the court to explain expenses, assets received and disbursed, how funds were used, and which debts were paid.
Once the petition is approved, assets are distributed to beneficiaries and heirs and the estate is settled.

Probate procedures alter slightly when a person passes away without a will. The court will appoint an administrator in this instance. The administrator finds and values assets and debts, distributes assets, and identifies heirs in the same manner as a personal representative or executor. The administrator of adult children is typically a spouse or domestic partner in most states. The intestate succession rules of the state will govern the distribution of the estate's assets.

How long does probate usually take to complete?

As a general rule, the probate process takes 6 to 18 months, but it can extend beyond that for more complex cases. It's essential to note that these are general estimates, and the actual duration can vary based on the specific circumstances of the estate and any unforeseen complications that may arise. On some occasions, probate can even take 1-3 years or even longer. There are many factors that can affect the probate process.

If any of these complications arise, the probate process could take several years.

The state’s probate court process.
Difficulty finding beneficiaries or heirs.
The number of beneficiaries and their residences.
A contest of the will by beneficiaries or heirs.
Real estate and property that are difficult to sell.
Liens and claims against the estate that are unsettled liens.
Failing to notify creditors during the claim period.
A personal representative who neglects their legal obligations.
The estate is large enough to owe estate taxes.

How is the probate process started?

When someone dies, probate doesn't start right away. Upon identification of a will, the designated executor may initiate the probate procedure by submitting a petition to the court seeking formal recognition as the executor. It is also necessary to file the death certificate and will.

In the event that no will is present, an administrative procedure is initiated. To choose an administrator for the estate, a petition still needs to be submitted to the probate court.

Following the filing of this petition, the court sets a hearing date to either approve the executive or administrator or hear any objections. All beneficiaries and heirs of the deceased must be notified of the hearing. After an executive or administrator is accepted, the court opens a probate case and the individual has the legal power to act on behalf of the estate.

Why is probate required?

Probate may appear to be nothing more than an expensive and time-consuming process, yet it serves numerous vital purposes. Probate is used to safeguard an estate's assets, make sure the correct beneficiaries or heirs receive them, and make sure debts and taxes are paid. Another purpose of probate is to ensure that a will is legitimate and the true wishes of the deceased are carried out.

The following are the main goals of probate and the reasons it's necessary:

Gives recipients and heirs a formal title transfer or ownership of assets and property. This guarantees that recipients will obtain a clean title and that the property cannot be mortgaged or otherwise disposed of.
Ensures that any taxes due, including those arising from the transfer of estate property, are paid by the decedent and/or the estate.
Provides a way for creditors to get their debts settled. Creditors have a deadline to submit claims during probate. This guarantees that debts are settled before assets are allocated to recipients and heirs, shielding them from future claims.
Protects assets to ensure that beneficiaries and heirs receive them. Otherwise, property could be easily stolen or sold.
Ensures that assets and property are allocated following the decedent's wishes to the appropriate individuals or groups.

Keep in mind that not all assets must go through probate, and not all estates require probate. By using alternative ownership and title options, such as immediately transferring property and assets to heirs and beneficiaries without going through the court system, this legal process can be circumvented in many ways.

How much does probate cost?

The cost of probate depends on many factors including:

State law
Local practices
Complexity of the estate
Whether a probate attorney is involved
Whether the will is challenged
Executor fees, if any
The cost of the surety bond
Probate fees typically range from 2% to 7% of the estate's total worth. Complex estates may incur considerably more costs, particularly if there is a will contest. Numerous predetermined costs are not negotiable or adjustable. Your state can have a big impact on costs. With many professionals you will use, you may be able to negotiate a lower rate, however, even when the statute provides for a percentage fee.

If the estate is very small, is probate still required?

Many estates don't need probate, however it varies depending on the kind of property and the estate's value. Probate is not required if the estate's assets are intended to transfer to recipients outside of it

To determine whether the estate qualifies for a simplified probate process or if there have been any changes to the rules, it is recommended to consult with a probate expert or check with the Washington State courts for the most up-to-date information. Legal professionals can provide guidance based on the specific details of the estate and ensure compliance with current state laws and procedures.

What happens during probate of an uncontested will?

When a will is not contested, the process described above for probate applies. A hearing on the petition will be held following the will's admission to the court to allow prospective beneficiaries and heirs to raise objections. The court designates the personal representative in the event that no objections are raised. Until the estate is finalized, a contest may still be brought, depending on the state.

Where is probate handled?

Probate is handled by the probate court in the county and state in which the decedent lived as their primary residence at the time of death. Note that this refers to the decedent’s state of primary residence, not where they may have been living or vacationing when they passed away.

Do I need a probate lawyer?

There is almost never a legal requirement to use a lawyer during the probate process, although probate can be complex and very formal. A missed deadline or failing to follow proper procedures can result in an executor being liable for mistakes or debts, for example. As a general rule, a probate lawyer is advisable for estates that are large or complex enough to require probate.

IMPORTANT NOTE:
Please be aware that the information on this page is delivered without warranty or guarantee of accuracy. It’s provided to help you learn more and formulate specific questions to discuss with your attorney and/or your Real Estate Professional and/or to help a personal representative, executor or executrix when executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for information only and that you are hereby advised that any decisions regarding probate issues should be discussed with an attorney and/or a Real Estate Professional.

I am an executor! What do I do Now! The executor has many responsibilities during probate.

Definition and Duties of the Personal Representative/Executor

The executor has many responsibilities during probate. Click on each of the FAQs to learn more.

FAQ: Definition and Duties of the Personal Representative/Executor

Who is legally responsible for handling probate?

When someone dies with a will, the personal representative or executor they name will be responsible for handling probate under the control of the state’s probate court, in most cases. In instances where no will exists, the court appoints an administrator to manage the estate and probate affairs according to state probate laws. Most states impose significant oversight on the actions of the executor or administrator, often requiring court permission for specific activities, such as property sales.

Can there be more than one personal representative?

While it is possible for more than one person to be named as an executor, co-executors must collaborate and agree on all decisions. This arrangement can lead to inconveniences and potential delays in the probate process due to the necessity for joint action.

Is it required for the personal representative to live in the decedent’s state?

State laws vary regarding the residency of personal representatives. In many states, it is not strictly mandatory for the executor to reside in the same state as the decedent. However, having the executor in the decedent's state can streamline and expedite the probate proceedings.

What are the main duties of a personal representative of an estate?

The executor has many responsibilities during probate. The personal representative’s primary duties include:

Identifying and creating an inventory of the assets of the estate
Determining which, if any, assets fall under probate
Receiving any payments due to the estate
Opening an estate checking account
Appraising or valuing estate assets
Determining who will receive what from the estate
Giving notice to potential creditors
Investigating claims against the estate
Paying outstanding debts and claims
Paying expenses to administer the estate
Handling paperwork which includes notifying Social Security of the death, court documents, and discontinuing utilities
Distributing property and assets to beneficiaries
Filing final taxes

If I am named as the personal representative, do I have to accept?

Being an executor is a major job. You are not required to accept if you are designated as an executor. You have the option to step down at any time if the personal representative role proves to be too demanding. If you decline the position, the probate court may nominate an alternate listed in the will, or it may choose a different candidate.

Are personal representatives usually paid?

The executor is not required to be paid, although most get paid for their services. In addition to receiving payment for personal expenditures, the representative often is paid a fee equal to around 2% of the estate's total value. There are states where the law requires this. As the estate's value increases, the charge often decreases.

The probate court must approve any money given to the executor. There are situations where extra costs may be granted.

What happens if the personal representative fails to perform their legal duties?

The legal liability executors incur is one of the main reasons why many people decline to serve as executors. Failure to fulfill obligations by an administrator or executor may result in personal responsibility for any harm they create.

A variety of situations might result in an executor being held accountable, including selling assets without the proper authorization, mismanaging assets, not collecting the money owed to the estate, overpaying creditors, not filing taxes on time, or allocating assets to the incorrect beneficiaries. The personal representative may be required to pay out-of-pocket expenses for any of these mistakes, among others.

Who can or can't be a personal representative of an estate?

Generally speaking, if a person is over 18, they can serve as an executor. An executor cannot be a convicted felon in some states. Additionally, there can be restrictions on out-of-state personal representatives, who might have to secure a bond or serve as a major beneficiary. In the event that the court has to designate a personal representative or an administrator, they normally select the following individuals in priority order from this list:

The person named as the personal representative in the will
A surviving spouse who is a beneficiary
Other beneficiaries
Surviving spouse who is not a beneficiary
Other heirs
Someone chosen by a creditor and approved by a probate judge

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I Object! Contesting a Will

A will can’t be contested by just anyone. Click on each of the FAQs to learn more about Contested Wills.

FAQ: Contested Wills

Who can legally contest a will?

Not everyone can contest a will; typically, only an "interested party" can do so and only for valid reasons. There are three categories of individuals with the standing to challenge a will:

Beneficiaries of a previous will
Beneficiaries of a subsequent will
Intestate heirs

An individual has the right to challenge a will if they are named in the will (or a prior will) or are not a named beneficiary but would inherit or lose inheritance under the will if it's deemed invalid. In simpler terms, one can contest the will if named or should have been named, or if they can demonstrate they would have received something from the estate had the decedent died intestate (without a will). Heirs, as per state intestate succession laws, encompass spouses, children, parents, siblings, and grandparents. Heirs or potential heirs may contest a will if they believe they were unjustly omitted or received an inequitable share. In cases where someone intends to disinherit or exclude an heir, a "no contest" clause is often used. However, these clauses are generally unenforceable in most states.

What if someone objects to the will?

Contesting a will initiates a potentially costly and time-consuming legal process that can extend for months or even years. During a will contest, the individual challenging the will must demonstrate grounds, proving them through testimony and evidence. The probate court ultimately decides the success of the contest, although many contests settle before reaching this stage.

What is the basis for contesting a will?

To contest a will, an individual must have both the legal standing to challenge it and a valid reason. In most states, there are four challenging legal grounds for contesting a will, all difficult to prove:

The will was not signed according to state law, a common reason for finding a will invalid.
The testator lacked testamentary capacity, meaning they didn't understand the nature and value of their assets and the legal consequences of signing the will.
The testator was under undue influence, rendering the will invalid if they faced severe distress, extreme pressure, threats, or other undue influences.
The will was fraudulently procured or forged, implying the testator was deceived into signing or the will was forged.

How can a will be legally contested?

In most states, there is a finite period for legally contesting a will, commencing when someone receives the notice of probate. To contest a will, a claim must be filed with the probate court in the county where the decedent passed away. The process of contesting a will may vary by state, potentially involving a deposition, evidence submission during a discovery phase, and providing testimony to the court.

How can I find out if there is a will?

Discovering whether a decedent had a will can pose challenges if they did not disclose this information to the appropriate individuals. Ideally, the designated executor was informed about the will and its location. In some instances, family members may be the first to locate the will. In most states, the individual finding the will is obligated to submit it to the probate court within days of discovery. If the executor was not informed, the next step involves searching for the attorney who may have drafted the will, utilizing old bank statements, or identifying the law firm the decedent engaged. Immediate family members may obtain permission to inspect secure areas like a safety deposit box (without removing contents) to locate a will. Typically, individuals who create a will store it where they believe it will be found, whether alongside other important documents, in a safe, or within a bank safety deposit box

How can I avoid probate?

There are many ways to avoid probate. Establishing a living trust is one option for holding legal title to specific property types until death. A trust, as a distinct legal entity, persists beyond its creator, ensuring that property held within it sidesteps probate and transfers to beneficiaries according to the trust documents.

Certain assets can also be transferred to beneficiaries without undergoing probate. For instance, bank accounts can be designated as payable on death (POD) to facilitate the immediate transfer of assets to a beneficiary. Cars and boats can be passed on by designating a beneficiary through a Transfer on Death title. Specific forms of real estate ownership similarly offer avenues to bypass probate.

Property and Probate

Real estate can only be sold during probate in specific cases .Click on each of the FAQs to learn more about how Probate affects Real Estate.

FAQ: Property Issues

What happens when the person who dies owned land in multiple states?

In the event of a person's demise with land holdings in multiple states, the probate issues are typically resolved according to the laws of the decedent's state of permanent residence. Regardless of the property's location, the laws of the state of residence are generally used to address probate matters. However, in cases involving out-of-state real estate and no will, the laws of the other state may determine the inheritance of the property. If a will exists, it usually needs to be submitted both to the decedent's state of residence and the state and county with jurisdiction over the real estate, leading to what is termed ancillary probate. This process involves two simultaneous probates in separate states, and in certain states, it may require the appointment of a personal representative who is a resident of the ancillary state, adding complexity to the proceedings. When there is no will, probate is typically required in every state where real property is situated, along with the decedent's primary residence state.

Is it necessary for all of the decedent’s property to go through probate?

While not all the decedent's property has to undergo probate, a legal method is necessary to transfer ownership and title to heirs and beneficiaries. In many states, certain property types can pass to specific beneficiaries outside of probate or through a simplified probate procedure. For instance, real estate can be transferred to a surviving co-owner through joint tenancy with the right of survivorship. Assets like life insurance policies, 401(k)s, IRAs, and other retirement accounts can pass to named beneficiaries outside of probate. Bank accounts can utilize payable-on-death designations for direct transfer to named beneficiaries.

Another probate bypass option is a living trust, acting as a separate legal entity holding title to property and automatically passing assets to heirs or beneficiaries without probate.

Is selling a home in a probate sale different than a traditional real estate transaction?

Yes and no. The sale of a home in a probate situation can differ based on the state, the presence of a will, and the will's provisions. In some states, the executor may sell the home only if essential to settle valid estate debts, subject to oversight and approval from the probate court. In contrast, other states may permit the sale if authorized by the will or with unanimous agreement from all heirs, irrespective of estate debts. The probate sale process can be lengthier than a traditional real estate sale, with unique disclosure requirements, especially if the executor did not reside in the home. Additional clauses may be involved, such as a requirement for the buyer to await probate court confirmation if there is no will or it is contested.

When can probate real estate be sold?

The sale of probate real estate can occur under specific circumstances. In the absence of a will, the court-appointed administrator may opt to sell the home, especially if multiple heirs are involved. However, compelling reasons, such as one sibling buying out others, may prompt the administrator to halt the sale. If a will exists, the executor's power to sell real estate is more limited. The ability to sell often depends on whether the will designates the property to a specific beneficiary or beneficiaries. If the will assigns the home to multiple beneficiaries, the executor can sell the property and distribute the proceeds equally among them.

In cases where the will does not restrict the sale or specify the recipient of the home, the executor can sell the property without the beneficiaries' consent.

Note: before listing or selling real estate, the executor must receive official appointment by the probate court.

How does real estate ownership affect probate?

There are many ways to hold title to real estate, depending on the state. Real estate can avoid probate completely if it’s passed to survivors automatically with ownership options like a living trust, community property laws, a transfer-on-death deed, or joint ownership with right of survivorship. There are several things that can happen to a home if it needs to go through probate:

There are several things that can happen to a home if it needs to go through probate:

The real estate can be transferred to beneficiaries named in the will through probate.
The property can be transferred to heirs through intestate probate without a will.
The executor can sell the property through probate.

With the right ownership structure, a home can sidestep probate, passing directly to beneficiaries.

What is the process for an executor to sell property?

The process for an executor to sell property typically begins with official appointment by the probate court. Subsequently, the executor follows a standard real estate sale procedure, which may involve a home inspection and hiring a real estate agent. Some agents possess certification as Certified Probate Real Estate Specialists, offering valuable expertise in navigating court-regulated probate sales. Specific rules for probate sales can vary by state, such as the requirement to list the home in the newspaper in certain states, like California. In cases where there is no will or it is contested, once an offer is accepted, a waiting period ensues to secure a court date for finalizing the sale. Some states even involve intricate bidding processes for probate homes.

Given the intricacies of probate laws, especially when selling a home as an executor, seeking assistance from a Certified Probate Real Estate Specialist is often recommended

Payments and Taxes

When someone dies, taxes are owed for their last tax year. Click on each of the FAQs to learn more about estate taxes, payments to creditors and how the probate process affects each of these.

FAQ: Payments and Taxes

How are creditors against an estate handled?

Priority is given to creditors when allocating the estate's assets and property to heirs or beneficiaries. Notifying creditors of the death is a requirement of the probate procedure. This could entail writing to each creditor or publishing a notice in the neighborhood newspaper, depending on the state. Creditors have a brief window of opportunity following the notification to make claims against the estate. Depending on the state, there are three ways to go about doing this: issuing a bill, alerting the probate court, or contacting the personal representative. The estate is used to settle claims that the executor or personal representative approves. If the personal representative decides that a claim is unfounded, the creditor will have to file a lawsuit. Property may be sold to settle debts if the estate is insufficiently wealthy to cover them. After then, according to state law, the executor or personal representative will decide who gets paid back and in what sequence.

Do beneficiaries and executors have to pay creditors out-of-own pocket if the estate is insolvent?

Payment of creditors is not the executor's responsibility unless they are paid using estate assets. But there are a few outliers. If an executor cosigned a loan or credit card with the deceased, they may be held accountable for any outstanding bills. If the executors mismanaged the estate's assets and reduced their worth, they may potentially be held accountable for debts. Debts committed with the deceased are borne by the surviving spouse. Depending on state rules and how the property is handled, the surviving spouse may or may not be liable for obligations the deceased committed on their own.

How are taxes handled in probate?

Taxes for the deceased person's final tax year are due. An estate, a distinct tax entity, is also formed upon death. A final federal income tax return, as well as possibly a Federal Fiduciary Income Tax return for the estate, a Federal Estate Tax return, and a Federal Gift Tax return, will need to be submitted, depending on the income and size of the estate and the decedent's income. The final state income tax return must also be filed by the executor. The personal representative or executor may also be required to pay other final taxes, including as real estate taxes, personal property taxes, business taxes, and special assessments, in addition to state and federal taxes.

How does an executor know which creditors to pay?

Upon the estate's having sufficient assets to cover all obligations, the creditors may be paid in any sequence. It is not unusual to have insufficient money or even assets to sell in order to pay off all creditors. State law in this instance establishes the debtors' and creditors' priority. The majority of states follow a comparable hierarchy when it comes to the executor's debt payment:

Administrative costs are first. This includes court fees, filing fees, and attorney fees.
Family exemptions. Payments to help family members of the decedent cover living expenses during probate is usually the second priority.
Funeral and final expenses. There may be a cap on the allowable expenses for burial and funeral costs in some states. This includes the cost for cremation, urns, interment, and a funeral service.
Government debts. This includes income taxes, property taxes, and estate taxes.
Final medical expenses. Next is the medical costs associated with the decedent’s final illness or injury which take priority over other unsecured debts like credit card debt.
Other claims. In most states, there is no priority for other unsecured debts. Sometimes debts are paid based on the date of the claim or debts may be prorated.

When must creditors be paid?

Probate follows certain procedures. The decedent's death must be announced to creditors, who must then have time to file a claim. Before allocating assets and property, the personal representative of the estate is required to settle valid claims. If the personal representative receives informal claims in the form of bills, then valid obligations should be paid even in the absence of an actual claim for repayment.

What is the difference between a formal and informal claim by a creditor?

The majority of a creditor's informal claims against an estate take the form of bills. During probate, creditors may file official claims. It is still necessary to notify every creditor of their formal claim right.

Minors in Probate

In many cases, a will does contain provisions for minor children. Click on each of the FAQs to learn more about how the court can affect the provisions.

FAQ: Provisions For Children & Survivors

Are provisions for the care and guardianship of minor children usually provided for in a will?

In many instances, wills do address provisions for minor children. However, it's important to note that a court can override these provisions under specific circumstances or if there is a justifiable challenge from another interested party or family member. The judge may also intervene if the designated guardian is found to be incompetent or unsuitable due to character issues. Ultimately, the judge holds the authority to make the final decision on guardianship, giving due consideration to the decedent's wishes.

How does “joint tenancy” affect a will?

Joint tenancy with the right of survivorship is a legal ownership arrangement commonly used to transfer home ownership without a will. It's crucial to understand that joint tenancy does not replace a will and applies exclusively to real property, excluding other assets. This ownership structure bypasses probate for real estate, making the surviving tenant or owner, usually a surviving spouse, the sole proprietor regardless of the will's contents and outside the probate process. The property, under this ownership type, is not considered part of the decedent's estate and is not subject to probate.

Are there any specific rules about how property can be disposed of?

Yes. The court will not uphold instructions that are deemed inappropriate. A judge has the authority to nullify part or all of a will that violates the law or is considered inappropriate. For example, a will cannot terminate someone else's legal rights or claims.

Creating a Will?

Adults of any age can benefit from a will, even without significant assets. Click on each of the FAQs to learn more about creating a will.

FAQ: Questions About Wills

What are the requirements for a will to be valid?

The criteria for a valid will may vary by state, but generally include:

Legal age: Most states require a minimum age of 18 to create a legally binding will. Some states set the age limit as low as 14 or 16, with exceptions for emancipated minors or significant inheritances.
Testamentary intent: It's crucial to clearly express the intention for the document to function as a will.
Testamentary capacity: The creator must be of sound mind, aware of their actions, and comprehend the implications when the will is crafted. Although individuals with dementia can create a legally binding will if lucid during its creation, a doctor's letter confirming mental competence is advisable.
Signed: The will must be signed without fraud, duress, or coercion. A representative can sign on behalf of someone physically unable to do so.
Witnesses: In most states, two adult witnesses must sign the will, and in some, witnesses must be disinterested, meaning they won't benefit from the will.

After a will is created, can it be changed?

To keep a will current, it's essential to update it as needed. Changes can be made by creating a new will or using a codicil to amend the existing one. Both a codicil and a new will require signatures from the testator and two or more witnesses for legal validity.

A codicil is suitable for minor alterations, while a new will is preferable for substantial changes, such as modifying beneficiaries.

Should a will have a separate list that inventories and bequeaths specific assets?

It is advisable to create a list of specific items to bequeath unless intending to leave all property to one person or only bequeathing a few items. Detailing specific items in the will facilitates the executor's identification and location of the property, minimizing disagreements among heirs and beneficiaries.When making gifts of specific items, it’s important to describe them as clearly as possible. The more detail, the easier it will be for the executor to identify and locate the property. By listing specific assets and personal property in your will, you can be sure property is passed on as you like. This can also help minimize disagreements among heirs and beneficiaries.

When should I make a will?

While there's no specific age requirement, adults of any age can benefit from a will, even without significant assets. Consider creating a will under the following circumstances:

You are married.
You have children, especially if you are married with children from a previous marriage you want to receive assets.

You have savings, investments, real estate, or a positive net worth.

What happens if a person dies without a will?

When an individual dies without a will, known as dying "intestate," the probate court appoints a personal representative or administrator to identify estate assets, settle claims, pay creditors and taxes, and distribute property according to the state's laws of intestate succession.

What happens if a will cannot be found?

The subsequent steps vary based on the state and circumstances. If the absence of a will is due to its revocation by the decedent, an earlier version may be utilized, or the state's intestate succession laws might determine asset distribution within the estate. In instances where the original will is missing, presenting a photocopy along with evidence of the decedent's signature on the original may be acceptable, provided proof of the original will's destruction is provided. When uncertainty persists regarding the existence of a will, or if it cannot be located, the state's intestate succession laws serve as the default protocol.

Who can or should draft my will?

Drafting a will can be accomplished with the assistance of an attorney, will-maker software, blank will forms, or independently. While not mandatory, engaging a lawyer is advisable, especially for intricate circumstances, to ensure the will's compliance with state law.

Is an out-of-state will valid?

In principle, a will should remain valid even after relocating to a different state. However, individual states have distinct laws governing the validity of wills. These unique legal provisions may render an out-of-state will invalid based on the laws of each state.

Even if the will remains valid in the new state, certain parts of the will may become void or need to be changed. For instance, Florida mandates that the personal representative be related by blood or marriage degree, or if not, be a Florida resident. Additionally, Florida does not recognize holographic (handwritten) or nuncupative (oral) wills, a distinction from most states.

Must a will be read aloud to the family by an attorney or personal representative?

The dramatized "reading of the will" portrayed in movies is largely fictional and is not a contemporary practice. In modern times, no state mandates the oral reading of a will. Once filed with the probate court, the will becomes part of the public record, accessible to anyone, including the general public.

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