Articles

Probate

Last week we discussed why you should have a will, and some of the considerations that go into creating a will. This week we will discuss another issue – how someone's estate is actually administered and distributed under a will.

If there is any substantial property involved, a will distributing that property must be filed in court in a proceeding called "probate".

Probate is simply a legal procedure, administered by the Superior Court, for identifying, preserving, and transferring property under a will following the death of the owner. Probate proceedings in Court will involve all such property which has not been otherwise legally transferred through a community property agreement, right of survivorship, trust, or insurance policy.

Most probate proceedings are simple and relatively speedy. When the existence of a will is not contested, the property is identified, and the beneficiaries are clear, probate may actually involve very little court involvement. Legal documents to establish the existence of the will are prepared by a lawyer and filed in Superior Court. Someone is appointed as the "personal representative" of the decedent to collect, manage and distribute the estate of the deceased. The court follows the directions provided in the will as to who gets what. If there is no dispute on these matters, and the directions are clear, this will occur quickly and efficiently. Once all of the property has properly been distributed, the personal representative is discharged from all further responsibilities and the probate case is closed.

The personal representative under a will is usually the spouse or another close relative. However, commercial institutions also provide professional administrators for estates, including probate estates. The court will normally name as the personal representative of the estate the same person who is named in the will. However, if that person is incompetent or unwilling to serve, the court may pick an institutional representative.

During the probate, the representative has to notify the beneficiaries and creditors that the decedent has died, and that they must file any claims in the probate proceeding. The representative then collects all assets and income (for example, rent from a rental house), and identify the location of all beneficiaries under the estate. If there are any pending lawsuits against the decedent, the administrator will represent the estate until these lawsuits are concluded. The representative will pay the appropriate taxes, and the valid claims of all creditors.

The representative may need to conduct an inventory of all of the assets of the decedent. A report of this inventory is then filed with the Superior Court.

When the representative is ready to distribute property under the estate, all beneficiaries and claimants are notified and given an opportunity to object or respond to the proposed method of distribution. Anyone who objects to the proposal for distributing the property may file their objection with the court, and have the court make a decision as to the appropriate way to make the distribution.

There are a number of ways in which objections can be filed to a plan of distribution in a probate proceeding. For one thing, someone may actually contest the validity of the will. Such objections would be proper if there is legitimate doubt as to whether the decedent actually signed the will; or whether the witnesses actually witnessed the signing of the will. In addition, the will could be invalid if the decedent was not mentally competent at the time he or she signed the will. Incompetency might be established by emotional disorders, intellectual impairment, Alzheimer's Disease, or the influence of drugs or alcohol.

Sometimes everyone agrees that the will is valid, but there is a dispute as to what the decedent actually intended under the will. For example, if the will states that two beneficiaries are to "each get one-half of my property", does that necessarily mean in dollar value? Does it mean that all of the property must be sold and then the money divided equally? Does it mean that real estate should physically be split in half? In the case of rental property, does it mean that the beneficiaries should maintain joint ownership and split the rentals?

The way that these issues most often get raised is that the personal representative makes a proposal for distribution of the property by filing a distribution plan with the court, and serving a copy on all of the other beneficiaries. If they believe that the distribution is not be made in accordance with the wishes of the testator, they should immediately file their objections and ask the court to make a decision as to what the testator intended. If the will is ambiguous, witnesses may need to be called to determine the testator's intent.

When a dispute like this arises, both the personal representatives and the beneficiaries would be well advised to consider the cost of a court battle. If the assets involved are not very large, quite a bit of the estate can be eaten up by attorney fees and court costs. For that reason, it is often advisable for these disputes to be settled by negotiation, if at all possible.