“There are many Myths and Unfounded Fears about what happens to estate assets in the transfer between the decedent and the beneficiary.”
Who Handles The Distribution Of The Property?
The person who administers the estate is called the “personal representative” (“PR” for short and also known as the “executor” or “administrator”). He or she has the responsibility to prepare the petition for probate to the court, an inventory of assets, and finally the accounting and proposed distribution of the proceeds of the estate. The PR has a legal duty to fairly and equitably distribute the assets of the estate.
How Long Does The Probate Process Take?
The probating of an estate typically takes six to nine months to conclude. If there are unusual assets or particular problems it may take longer. If the estate has taken a year and a half or more, the other heirs should request the PR and the PR’s attorney to explain the delay. If there is unreasonable delay in concluding the estate, the other heirs may ask the probate court to remove the PR and/or “surcharge” the PR. A probate surcharge is a monetary penalty imposed on the personal representative for neglect of the duties. These are serious matters and the sanctions are generally reserved only for the more substantial breaches of the PR’s fiduciary duties.
How Do We Keep An Eye On Things If We Don’t Trust The Personal Representative?
The heirs are entitled to Notice and the Opportunity to be heard at all critical points in the proceeding. If you don’t trust the person who seeks to be appointed as PR, you may ask the court to appoint someone else. If the person filing the petition has asked for informal administration, you may ask for formal administration or supervised administration or both. You can ask that the person appointed be required to file a bond with the court to ensure that he or she will properly perform his or her duties as personal representative.
What Happens If Some Of The Heirs Are Not Mentally Competent?
The Probate Court wants to be sure that an heir or beneficiary has a reasonable opportunity to participate in the probate administration process and to use the proceeds he or she receives in his or her best interests. If the heir or beneficiary is not mentally competent, the court will see that a conservator or guardian is appointed for the incapacitated person for the purposes of the probate process and possibly for the safeguarding of the inheritance.
Who Gets The Family Home?
If the deceased person owned the home jointly with his or her spouse, that person will get the home. If the home was owned by the decedent before the marriage and is only in his or her name, the surviving spouse will usually be able to live in the home till his or her death (called a “life estate”) and then the home would go to the children of the decedent. There can be other variations on the homestead ownership issue. For that reason, the heirs may wish to seek legal help.
How Do They Handle The Inheritances Of Children Under 18 Years Of Age?
Minor children cannot receive their inheritances until they reach 18 years of age. The probate court will usually insist that the shares for the child are set aside in a bank account to which he or she will not have access until the child’s 18th birthday. If the child has serious needs arising before the age of 18 and for which he or she does have assets to pay, the court in a separate proceeding may make some or all of the funds available for the child’s needs.
How Does Probate Handle Jointly Held Property, IRA’s Or Insurance Proceeds?
Jointly held property as a general rule are non-probate assets that are passed to the surviving joint owner or the beneficiary under the insurance policy or IRA. Sometimes bank accounts or similar assets have been placed in the name of another person along with the decedent although it may have not been intended by the decedent for the survivor to have the sole benefit of the account. This can pose a difficult issue and if the account is substantial, the other heirs may be well advised to consult with a probate attorney.
Must All The Assets Be Sold? What If I Want To Buy Some Of The Assets?
The assets may be distributed “in kind” so that the home, motor vehicles or other significant assets may be passed to beneficiaries or heirs instead of a cash settlement of his or her share. This requires virtually unanimous consent of the heirs or a court order. The foundation of an “in kind” distribution or sale of some of the assets to an heir or beneficiary usually is a Fair Market Appraisal by an expert that everyone accepts or one that the judge approves. There are special statutory provisions for items of sentimental importance but which may not have a substantial monetary value.
