Probate Proceedings

What is a Probate Proceeding? A Probate Proceeding is any proceeding in a Probate Court (a court having jurisdiction by state Constitution or Statute over probate matters) that relates to the estate  of a deceased person. Probate Proceedings are sometime also referred to as “Probate Matter” or “Proceeding in Probate”. The Proceedings include the following:

(1)          probate of a will, without or without administration;

(2)          the issuance of letters testamentary and of administration;

(3)          an heirship determination or small estate affidavit, community property administration, and homestead and family allowances;

(4)          an application, petitioner, motion, or action regarding the probate of a will or an estate administration, including a claim for money owed by the decedent;

(5)          a claim arising from an estate administration and any action brought on the claim;

(6)          the settling of a personal representative’s account or an estate and any other matter related to the settlement, partition, or distribution or an estate; and,

(7)          a will construction suit.

What actions should family members or a friend should take when end of life is near or soon after a death? Of course, taking care of the emotional needs of family members and friends comes first along with making arrangements for last rites and burial. Regarding probate, first, learn the decedent’s instructions for disposition of his/her body through previously given written instructions, if any. Next, consult with an attorney to determine if any probate proceedings or other legal actions are required.

In case a probate proceeding is needed, collect a number of documents, including: (a) all signed copies of decedent’s wills and codicils (b) copy of decedent’s death certificate (c) copy of decedent’s obituary notice (d) copies of all trusts created by or for benefit of decedent or decedent’s survivors, and current financial statement for each trust (e) all insurance policies in which decedent or decedent’s spouse have interest, including: (i) life, (ii) accident (iii) disability (iv) fire (v) casualty or (vi) health, and (f) a listing of all estate assets and debts. Legal counsel may suggest collection of a number of other documents and information that are relevant to any probate proceedings.

Consult with an attorney to determine if any probate proceedings or other legal actions are required. Sometimes no administration of probate estate assets is required. In general, a probate proceeding is needed  in order to establish

(1) ownership of property or

(2) a right in property that belonged to a deceased person or

(3) to establish and collect a claim against the property of a deceased person. Probate proceedings can be expensive and can extend over a long period of time. Ask your attorney about some of the ways to avoid probate proceedings or to use a proceeding that minimizes expense.

 

If there is a will, consider:

(1) Probate of a Will as a Muniment of Title,

(2) Collection of Small Estate Upon Affidavit,

(3) Application for Order of No Administration,

(4) Summary Proceedings for Small Estates After Personal Representative Appointed,

(5) Application for Independent Administration, or

(6) Application for Court Appointed Independent Executor.

 

If decedent died intestate (no will), ask about:

(1) filing application for letters of administration,

(2) filing affidavits of heirship,

(3) instituting proceeding to determine heirship, or

(4) apply for community administration.

 

What is the time limit for filing a probate proceeding? All applications for “letters testamentary or of administration” of a probate estate must be filed within four (4) years after the death of the testator or intestate person. No will may be admitted to probate after the lapse of four (4) years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the will for probate within the four (4) year time period. Furthermore, no letters testamentary may be issued where a will is admitted to probate after the lapse of four (4) years after the death of the testator.

What is Administration of a Probate Estate? When a person dies leaving an estate and administration of assets is needed, then someone must ask a probate court to appoint a person to take control of the probate estate and administer (manage) the assents and distribute the assets of the net estate to the heirs. Such a person is known as a “Representative” or a “Personal Representative”. If the decedent made a will, the will should and usually does designate a specific person to serve as executor. The executor named in a will becomes the “Personal Representative” of the probate estate upon qualification and the issuance of letters testamentary. Some probate administrations are dependent and other are independent. An independent administration is largely free of probate court supervision and is therefore far less expensive than a dependent administration.[i]