What exactly is probate?
It is a procedure used in court to determine whether a Last Will and Testament
is valid or invalid. If the will is "admitted to probate" by the court it
means it was found to be valid. Is there a time frame in which one must file a will for probate?
The hard, fast rule is that all wills must be filed for probate within four
years of the date of death of the author of the will (this person is referred
to as the "testator" if male and "testatrix" if female). However, there
are a few exceptions to this rule. You should consult an attorney for these
exceptions. Is it a rule that a will must be probated?
Although it is not mandatory that a will be probated, it is always a good
idea to check with an attorney before deciding not to proceed with such
action. There may be some legal issues involved of which you are unaware
and which require the probate of the will. Are there other alternatives to full administration of a will?
Yes. They include: (1) probating the will as muniment of title; (2) filing
a small estate affidavit; or (3) filing an heirship determination. What is involved in probating a will as a muniment of title?
This procedure will only be allowed by the court when the applicant can
show that (1) the estate has no unpaid debts, excluding debts secured by
liens on real estate, and (2) there is no necessity for administration.
The will must still be proved valid at a hearing before the court; however,
no executor will be appointed. The effect of an order admitting a will to probate as a muniment of title
is strong in that it is legal authority to all persons (1) owing any money
to the deceased; (2) having custody of any property of the deceased; (3)
acting as registrar or transfer agent of any evidence of interest, indebtedness,
property, or right belonging to the estate; or (4) purchasing from or otherwise
dealing with the estate, for payment or transfer to the person named in
the will as entitled to receive the particular asset, without any administration.
In other words, after the will is admitted to probate as a muniment of title,
the beneficiaries of the decedent's estate become the owners of the property
outright. What is required for a small estate affidavit?
The requirements for the collection of a small estate by affidavit are that:
(1) there is no will being offered for probate and no petition for dependent
administration pending; (2) the value of all of the estate assets, not including
homestead and exempt property, does not exceed $50,000; (3) 30 days has
elapsed since the decedent's death; and (4) two disinterested witnesses
file a sworn affidavit concerning heirship. What effect does a small estate affidavit have?
Persons dealing with distributees of assets from the small estate are released
to the same extent as if they dealt with a personal representative of the
estate. Distributees can bring action to force delivery of the estate property
and the distributees will be liable to any creditors or anyone else having
a prior right to the property. This procedure does not transfer title to
real property, except for a homestead. If a person dies without a will, who inherits?
If a person dies without a will (or "intestate") the heirs and their shares
of the estate must be determined in an heirship determination proceeding.
In this proceeding, all facts concerning the identity of all heirs must
be produced at a hearing. An attorney ad litem will be appointed by the
court to represent the interests of any unknown heirs, known heirs who cannot
be located, or heirs suffering from legal disability. If a person dies intestate leaving a spouse, what will the spouse
inherit?
If the deceased person had no children, his or her surviving spouse will
inherit all of the decedent's interest in the community property, all of
the decedent's separate personal property, and one-half (or sometimes all)
of the decedent's separate real property. If the decedent is survived by
children or descendants of children all of whom were also descendants of
the surviving spouse, the surviving spouse will inherit all of the community
property, but only one-third of the separate personal property and a one-half
interest for life in the decedent's separate real property. If the decedent
is survived by children or descendants and at least one child who was not
also a descendant of the surviving spouse, the surviving spouse will inherit
none of the decedent's community property, one-third of the decedent's separate
personal property, and a one-third interest for life in the decedent's separate
real property. How can a proceeding for heirship determination be used to avoid
a dependent administration?
An order determining heirship when coupled with an order of no necessity
for administration constitutes sufficient legal authority to all persons
owing money, having custody of property or acting as transfer agent of any
interest, indebtedness, or property belonging to the estate, and for persons
purchasing or otherwise dealing with the estate for payment or transfer
to the heirs as determined in the court's order. | 
