Even with a will, probate (the identification, gathering and distribution of a deceased person’s assets) can be a confusing and daunting process. We’ve decided to devote our next two blogs to walking you through this challenging task that comes during an emotional time.
This week, we’ll talk about paperwork – where and what should be filed and what to do if a will doesn’t exist.
Where do you start?
The probate process begins when the executor (sometimes referred to as a personal representative) files the necessary paperwork with the appropriate county officer where the deceased legally resided at the time of death.
Each jurisdiction will have its own rules and nuances, however, the basic principles are generally similar. For example, in Pennsylvania, an estate is opened by filing a “petition for grant of letters” with the county’s Register of Wills; Florida requires a request for “letters of administration” from the clerk of the county’s circuit court. Other items typically required to open the estate include:
- An original version of the will along with any codicils (i.e., supplements to the will)
- Signed and notarized oaths of witnesses if the will does not have a self-proving affidavit (a sworn statement attached to a will, signed by the will maker and his or her witnesses, that attests to the validity of the will)
- A check for the filing fee
- Identification for each individual intending to serve as an executor or a signed renunciation from anyone named in the will who does not wish to serve
Typically, a will includes the appointment of an executor and successor executors who replace the primary executor in the event that person is unwilling or unable to serve. Many wills also include provisions that allow the named executor to hire a professional assistant (typically a law firm) at the estate’s expense.
What if there isn’t a will?
The first question that springs to mind when there is no will is, “Who gets what?” A person who dies without a valid will is said to have died “intestate.” Each state has an intestate succession statute that provides a default estate distribution plan for these situations. The default plan also applies to any assets that are not effectively disposed of by a valid will. While states differ on the details, intestate succession laws generally grant priority to the deceased’s surviving spouse (if any) followed by surviving children, grandchildren, and other lineal descendants. If the decedent leaves no surviving spouse or descendants, the statute will look up the family tree, first to parents, followed by brothers and sisters, grandparents, aunts, uncles and other more distant relatives.
These default provisions typically limit eligible beneficiaries to spouses and blood relatives. Friends, non-spouse partners, favorite charities, etc. are not entitled to any proceeds. In the rare instance that no eligible relatives can be identified, the decedent’s estate passes to the state in a process known as “escheat.”
Who serves as executor?
If there is no will, or if a will fails to name an eligible executor (e.g., the named executor and successor executors are unable or unwilling to serve), the court will appoint someone to serve. Preference is generally given in the same order in which assets are distributed to adults who have not been determined to be incompetent.
This week, we’ve taken you through how the legal documents carry the probate process forward. In our next blog, we’ll talk about the assets involved in the process, and strategies to avoid probate.