Probate

With few exceptions, the estate of a person who dies owning property in his or her name cannot legally be distributed without first going through probate. Only if all of a decedent's property is held in joint tenancy with right of survivorship (pursuant to a written agreement) or in trust can survivors avoid probate. Probate can operate with court supervision, called supervised administration, or without court supervision, called independent administration. Informal probate also is available. Some simple, small estates may be collected upon affidavit.

Regardless of the type of administration, the first duty of the probate court is to determine whether the decedent left a valid will. The person in possession of a decedent's will must deliver it to the clerk of the court that has jurisdiction of the estate. If the decedent left a valid will, the court oversees the process of settling the estate according to the terms of the will. If the decedent did not leave a will or if the probate court determines the will is invalid, the probate court applies the state inheritance laws, described earlier, to the estate.

Collection of a small estate upon affidavit is available if the estate, not including the homestead and exempt property, is $50,000 or less, no petition for the appointment of a personal representative is pending or has been granted, and 30 days have elapsed since the death of the decedent. The assets of the estate, not including the homestead and exempt property, must exceed the known liabilities of the estate. An affidavit containing the information required by law is filed with the clerk of court and it is approved by a judge.

If the value of the assets of an estate, excluding homestead and exempt property, does not exceed the amount to which a surviving spouse and minor children are entitled as a family allowance, an application may be filed by or on behalf of the spouse and children requesting the court to make a family allowance and to enter an order that no administration of the estate is necessary. A family allowance is that amount sufficient for the maintenance of a surviving spouse and children for one year from the time of the decedent's death.

There also are summary proceedings for small estates after a personal representative has been appointed. Summary proceedings only are allowed if the value of the estate does not exceed the amount required to pay the claims against the estate.

Independent administration permits the personal representative to administer the estate without most court orders or filings. Unless disputes arise between the beneficiaries or with third parties, or unless requested to intervene by the personal representative or an interested party, or unless the law explicitly provides for some action by the court, the court is involved only to open the estate; enter an order granting independent administration; approve the inventory, appraisement, and list of claims against the estate; and close the estate. The process reduces the time involved in probate. If the will so specifies or if any of the distributees of the decedent do not agree on independent administration, the court must supervise the administration.

An executor, or personal representative, or any person named as a devisee or legatee in a will may apply for the informal probate of a will. The application may be filed with the court 30 days after the testator's death. Specific requirements must exist in order to apply for informal probate. For example, all of the estate's known debts must have been satisfied. A judge may deny the application for informal probate if the requirements are not satisfied or if he or she determines that formal probate is necessary.

Supervised administration requires the personal representative to make required filings with the court, such as an estate inventory and periodic accountings. The personal representative also must obtain court approval to perform certain duties such as purchasing, exchanging, selling or leasing estate property.