Probate Forms

WHAT TYPE OF PROBATE FORMS NEED TO BE COMPLETED?

The type of probate forms and probate procedure required is determined by state probate code.   The state code generally offers a simplified type of paperwork for small estates and surviving spouses.

Q.    How do you calculate the value of the probate estate?

A.   The probate property page explains how family member or personal representatives can calculate the value of the decedent’s probate estate.

Pay careful attention to how state statues determine the value of probate property.   Some states define the dollar limit as your gross estate (the market value of everything you own with no deduction for debts).  Other states define the value as the net value, the fair market value of the asset less any secured debt).  Some calculate the value of the net probate estate (net value only of property left by will).

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Q. How do you know if the estate qualifies for a small estate procedure?

A. The probate state reference tables summarize the small estate procedures for each state and describe whether a state support a summary administration procedures or an affidavit procedure.

The tables summarize the type of property and the dollar limits for each state.  State probate codes are also listed so you can go on line and find out more about state probate rules.   .

You can also contact the probate court and see if they can provide information or resources relating to the administration of small estates.

A probate attorney will understand the nuances in the rules and help you decide if the estate qualifies for simplified small estate procedures

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Q. What is summary administration?

A. A summary administration is an abbreviated proceeding before a probate judge either with a will or intestacy when the value of the entire estate subject to administration in the state meets the small estate state limits.   These limits are usually based on the dollar value of the estate, and in some instances, the dollar value of real property versus personal property.

A judge can have an initial hearing and immediately authorize distribution of the assets to the beneficiaries.

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Q. What is a small estate affidavit procedure?

A.   Some states probate code allow a small estate to be administered by the use affidavits.    The affidavit gives the person named on the affidavit the legal authority to manage the assets, including requests to transfer title from the name of the decedent to a new beneficiary.

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Q. What is an affidavit?

A. The estate representative or the beneficiary fills out a claim form referred to as an affidavit, stating the owner has died and that he is the new owner of the asset.  The new beneficiary sends the affidavit and a copy of the death certificate to the person or entity holding the probate asset (i.e., a brokerage firm or a bank), and requests the probate asset be transferred into the name of the new beneficiary.

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Q. What happens in a normal probate procedure?

A.    A normal probate process is a court-supervised process.  The courts monitor the steps the personal representative takes, adding significant time and costs to the probate process.  Furthermore, unless you waive bond in your will, your estate representative may be required to post a bond guaranteeing his or her performance and protecting creditors.  The entire probate process is supervised by the probate court.   You, or a probate attorney, files documents so the following can happen:

  • A judge determines whether or not the decedent’s will is valid
  • The executor named in the will or the personal representative appointed by the court creates an inventory of the decedent’s probate assets and takes control of the assets; pays the decedents legal debts; files income and estate tax returns; and distributes the remaining probate assets to the individuals or entities entitled to the assets in accordance with the will or laws of intestacy
  • The court approves the transfer of the decedent’s assets to the individuals and entities designated in the will or laws of intestacy.   Letters of Administration are issued by the probate judge to a personal representative, showing that the personal representative has the authority to act on behalf of the estate.

A relatively uncomplicated probate case can take over a year from filing to closing.  During that time, the beneficiaries have neither possession nor control of the property left to them although, in certain circumstances, the beneficiaries may petition the court for a living allowance and/or special funds for things like tuition payments.

Probate takes time because the process is a sequential process, with some time period required before the next step can take place.  For instance, a probate case requires sending out a notice to creditors.  The court gives the creditors four months to respond.  If your estate must file a federal estate tax return, the case will not be closed until the IRS approves the estate tax returns.  If the value of your probate assets requires a complex probate procedure, probate could last six to twelve months.

This is one reason someone who opens a probate case immediately gets a direct mail piece offering to loan money while waiting for his or her inheritance.

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QAre surviving spouses subject to probate?
A. Yes.  However, many states allow a surviving spouse to complete and file a special type of probate form and follow an expedited process.

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Q. What if real property is owned in a different state?

A. If real estate is owned in more than one state, the estate representative must calculate the probate value of the real estate in each state.  An ancillary probate procedure is required in the state where the real estate is located.  State laws will determine if the ancillary process can be accomplished with affidavits.

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