Various Types of Probate and Administration of Estates
By David Walker
An estate may need to be administered where there is property of the deceased to be transferred. Jointly owned real property or bank accounts, without survivorship, are some of the types of property that call for administration of an estate. If there is a will, it would be probated. If there is no will, the estate is intestate, and a petition for administration must be filed. A personal representative for the estate must be appointed by the Probate Court.
The usual method of probate of a will is called probate in solemn form, which involves giving notice to all the heirs and giving them a chance to object to the probate. There is another procedure called probate in common form, which does not involve the requirement of notice to all the heirs. However, the heirs may object later during the administration of the estate because they were not notified. It is generally better to probate wills in solemn form and dispose of any objections to the probate at the beginning.
A temporary administrator can be appointed when there is need for immediate collection of estate assets, or there is some delay in having a permanent executor or administrator appointed. For example, when witnesses to wills are difficult to find, or there is some dispute or litigation about who is the executor, a temporary administrator may be appointed. The temporary administrator can be appointed by making application with the court, but the temporary administrator must put up a bond in order to serve.
We have had situations in our years of practice where this came in handy. In one situation, an elderly lady had altered her will without the alterations being witnessed, and there was an issue as to whether the will was still valid. Her heirs and beneficiaries of the will were not the same persons. There was some apprehension that estate accounts could be accessed by some of these persons. One of the heirs was able to become temporary administrator and to collect substantial amounts of estate money from CDs to be held in an estate account, and the matter was ultimately settled. In another case, four brothers could not agree as to who should be their father’s personal representative, so the brother who handled his finances was able to become temporary administrator, and attend to the matters that needed immediate attention.
If the named executor or a designated alternate in a will cannot serve, the will may be admitted to probate under a procedure known as administration with the will annexed, and some interested person may serve instead.
A will may be probated without the need of testimony from the witnesses, if it contains a self proving affidavit. Such affidavits are normally found as part of more recent wills, but older wills may not contain them. In that event, at least one witness will be needed in order to probate the will.
If the original cannot be found, a copy of a will may be probated if the witnesses can testify to its accuracy. If the witnesses cannot be found, a copy may be probated if efforts to locate the witnesses can be shown, and other persons who are familiar with the deceased person’s signature can testify to its accuracy.
A widow or minor child can petition the court for a share of the estate in addition to or in the alternative to taking property that was left them in the will, in a procedure called “years’ support.”
Executors and administrators must file inventories and returns to the court, and post a bond to serve. If the will relieves the executor of these duties, these reports to the court and bond are not required. If all the heirs agree, other powers, such as the power to sell estate property without court order can be allowed. These steps can make the probate much easier, but the requirements of filing reports and putting up bond cannot be avoided unless the will grants such powers, or unless all heirs agree.
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