Often times, when someone becomes an heir to an estate, they
are unclear on exactly what to do next.
Because of the complex probate process, heirs rarely understand their
rights and choices, their role in probate, or the probate process itself.
As an heir, there are some things you should understand right
away about your role in the probate process:
- Contrary to popular belief, the estate attorney handling the
probate estate represents only his/her client, the Personal Representative,
“PR” for short (also referred to as the Executor or Administrator)
- Because the estate attorney does not represent any heir
associated with a probate estate other than the personal representative, he or
she is under no obligation to take or return any phone calls, or to provide you
advice as to your legal rights as an estate heir.
- Any information that you receive regarding the estate will
likely come in the form of a letter or probate pleadings sent to you by the
estate attorney.
What is probate?
Probate is a court supervised process where the validity of
the decedent’s (person who passed away) last will is established and through
which the decedent’s estate is administered.
Probate is a very
time consuming and paperwork intensive process. While some estates can be administered in 18
months or less, a large percentage of estates can take up to 3 years to close.
This means that the estate heirs may not receive any inheritance money for up
to 3 years after probate first begins.
How does the probate process work?
The very first step in the probate process is filing the Petition for Probate. This petition, along with the original will
and codicils (legal alterations to the will), if any, are filed with the
probate court. Also filed at this stage
is the Notice of Petition to Administer
Estate. In this case, the
“petitioner” is usually the proposed Personal Representative.
Once these forms have been filed, the court clerk will set a
hearing for 45-60 days after the filing date.
It is at this point that notice has to be given to all of
the people named in the will. This is
most likely the stage at which you first received notice of your heirship.
The Notice of Petition
to Administer Estate is also published in a local newspaper to alert the
decedent’s creditors that they must file their claims with the court within a
specified period of time.
At the hearing, if no one has filed an objection to the
probate, the court will admit the will to probate and appoint the PR. After this appointment, the court will issue
Letters [either “Letters Testamentary” or “Letters of Administration”] which
are used by the PR to prove that they have the authority to act on behalf of
the estate.
The second phase of probate consists of an ongoing process
of filings, notifications and applicable settlements. The following is just a short list of tasks
which must be completed:
- Identify all of the assets owned by the decedent at the
time of death
- File an Inventory & Appraisal which values the estate’s
assets, both real (land) and personal
- Notify the Department of Health Services
- Liquidate all of the estate’s assets
- Pay any debts, claims or taxes that are due and object to
claims which should not be allowed
- Settle all financial and property disputes
- The final phase of probate consists of closing the estate
and distributing the remaining assets to the heirs. If all goes smoothly, the final actions in
the probate will be:
- Obtaining a court order of distribution
- Closing the estate accounts
- Making final distributions to the heirs
- Obtaining receipts from the heirs for the distributions
made to them
As you can tell, the probate process is indeed a long and
difficult process. The good news is that
the Personal Representative chose to retain a probate attorney to guide the
estate through this complicated process!
The bad news is that, even with the help of an attorney, the probate
process can still take 12-18 months or longer!
WHAT IF YOU NEED A PORTION OF YOUR INHERITANCE NOW?
If there is a substantial amount of cash in the estate, it
may be possible to persuade the PR and the estate attorney to petition the
court for a preliminary distribution.
When this is not an option, contact Inheritance Funding
Company, Inc. [IFC]. IFC provides cash
advances to heirs who are stuck in Probate.
IFC’s inheritance advances are not loans, so there are no monthly payments. Instead, IFC actually purchases a portion of
your inheritance and is paid back directly from the estate when Probate is
closed. If you are interested in
learning more, call one of IFC’s Funding Officers at (800) 944-2072 or visit
IFC’s website at www.InheritanceFunding.com.
Wills and trusts are two commonly utilized tools used to
ensure the proper transfer of assets after death. But what exactly is a will?
What is a trust? How are wills and trusts similar or different? After reading
this article, you should have a better understanding of the basics and
differences regarding these two tools and how they are used.
Wills
A will is a written document that a person uses to define how their
possessions and property will be distributed upon his or her death. The
person’s accumulated property is known as an estate. The creator of the will is
referred to as the testator. The testator designates, or names,
beneficiaries in the will document. A beneficiary is someone or
something that will receive a share of the testator’s estate upon the
testator’s death. The testator can name one or multiple beneficiaries. The
testator also designates an executor. An executor is the person
in charge of carrying out the directions of the will.
In order for a will to be valid, the circumstances
surrounding the creation of the document and the document
itself must adhere to certain requirements. Since wills are governed by state
law and each state’s will laws vary, you should check your state’s
requirements. Here are some of the general requirements that are common for
valid will creation:
- The
testator must be of majority age, which generally means he or she must be
at least 18 years of age.
- He or
she must have the intent to create a will
- He or
she must have the physical and mental capacity to create a will.
- Wills
are typically required to be signed by the testator and a certain number
of witnesses.
Some people believe that once a will is created, it cannot
be revoked. However, this is incorrect. All wills can be revoked by the
testator until the testator dies. A will can be revoked typically in three
different ways:
- A
subsequent written instrument such as a new will or a letter of
revocation.
- A
physical act such as tearing up the will.
- An
operation of law, for example, a subsequent marriage or a court determining
the will to be invalid.
After the testator’s death, their will is put through the
probate process. Probate is the legal process in which a will’s validity or
invalidity is determined. If the will is held to be valid, the testator’s
estate will be distributed according to the directions in the will. While this
may sound simple, probate proceedings tend to be complicated, time-consuming,
expensive, and confusing. You can learn more about Probate on our website by
clicking here: Probate
and Inheritance Funding Company.
Trusts
A trust is a separate entity whereby a person’s real and personal property
is held and remains for the benefit of another persons. In general, a trust
must have a settlor, an identifiable beneficiary,
and a trustee. The settlor is the person creating the trust. The
beneficiary of the trust are the designated individuals who hold inheritance
rights of the trust property. The settlor can name one or multiple
beneficiaries. The trustee is the person or organization that manages the
trust.
The trustee holds legal title to the trust property and must hold and manage
the property for the benefit of the beneficiaries. The settlor can designate
one or more trustees. If there is more than one trustee, each is referred to as
a co-trustee. The settlor can, and should, also designate an alternative
trustee. This person will serve as trustee if the original trustee cannot or
will not perform their obligations.
In order for a trust to be correctly managed, the
settlor usually creates a trust document. The trust document is commonly
referred to as a Trust Deed. The trustee is obligated to manage and administer
the trust in accordance with the terms of the trust document and law. Trusts
are governed by state law and each state’s trust laws vary, so you should check
your respective state’s requirements.
Remember, when deciding on what type of
will or trust you should implement, it is always best to consult a qualified
probate attorney in your area. One online resource, USA-Probate.com,
provides a comprehensive listing of probate lawyers near you.