What does “Probating a Will” mean?
It means taking all legal steps necessary to ensure a Will is valid and to admit the Will to probate.
What does “Estate” mean?
It relates to all property of a deceased person that is the subject of a probate action.
What does “Probating an Estate” mean?
This is a legal process provided for by Florida law which determines the value of a deceased person’s property and its distribution to heirs.
Where do probate proceedings take place?
Proceedings are held in the Circuit Court of the county where the deceased was domiciled or owned property.
Why is probate necessary?
To collect and determine the estate’s assets and to protect the assets of the estate. To provide a means of converting assets to cash to distribute to beneficiaries, or to pay creditors/taxes. To legally transfer ownership of real property. To determine who is entitled to share in the estate and to distribute the property to the proper parties.
What happens if a person dies, and has left no will?
The property will be distributed in accordance with Florida law.
When should I make a will?
A person should make a will right now because no one knows what tomorrow holds. A person should review his estate plan occasionally, especially after certain events, such as marriage, divorce and winning the lottery.
Who needs a will?
Since most everyone dies possessing property, most everyone needs a will. State law decides what happens to property in the estate of a person who dies without a will. State law attempts to distribute the property according to what most people want, but it doesn’t always work that way. The default plan normally distributes property to relatives.
Someone who leaves behind a girlfriend or boyfriend, or even a fiance’, will not be able to provide them with any inheritance unless there is a valid will. There is almost no exception in the law to provide otherwise.
How can a person contest a will?
A person contests a will by filing the relevant documents with the probate court. The person normally must be “interested” that is, must be an heir under the will or at law. There are time limits for contesting a will, and they vary by state.
You must have grounds to have a chance of successfully contesting a will. Unhappiness with the proposed distribution of property is not a valid ground. Valid grounds depend on state law. Incapacity, fraud, undue influence and duressare the most common grounds.
Can I appoint a guardian for my children in my will?
Yes. This is another valuable benefit that a will can provide. However, a court is not bound by the naming of a guardian in a will. The court will certainly consider it, and it’s often the only way to make your wishes known after you’ve died.
What are probate assets?
Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:
- a bank account in the sole name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset;
- a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent’s estate is a probate asset;
- real estate titled in the sole name of the decedent is a probate asset (unless it is homestead), but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset;
- property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
This list is not exclusive but is intended to be illustrative.
Who Is Involved In The Probate Process?
While there may be others, the following is a list of persons or entities often involved in the probate process:
- Clerk of the Circuit Court
- Circuit Court Judge
- Personal Representative
- Attorney for the Personal Representative
- Claimants
- Internal Revenue Service (IRS)
- Florida Department of Revenue
- Surviving Spouse and Children
- Other Beneficiaries
- Trustee of Revocable Trust
Who Can Be A Personal Representative?
- The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
- An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative.
- A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.
Who Has Preference To Be Personal Representative?
- If the decedent left a valid will, the designated personal representative nominated in the will has preference to serve.
- If the decedent did not leave a valid will, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs.
Where Are Probate Papers Filed?
Probate papers are filed with the Clerk of the Circuit Court, usually for the county where the decedent lived. A filing fee must be paid to the clerk to commence the probate administration. The clerk assigns a file number and maintains a docket sheet which lists all papers filed with the clerk for that probate administration.
Who Supervises The Probate Administration?
A Circuit Court Judge presides over probate proceedings. The judge appoints the personal representative and issues “letters of administration,” also referred to simply as “letters.” This document shows to the world the authority of the personal representative to act. The Judge also holds hearings when necessary and resolves all questions raised during the administration of the estate by entering written directions called “orders.”
What Is A Personal Representative, And What Does The Personal Representative Do?
The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The generic term “personal representative” has replaced such terms as “executor, executrix, administrator and administratrix.”
The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:
- Identify, gather, value and safeguard probate assets.
- Publish a “notice of administration” in a local newspaper, giving notice of the administration of the estate and of requirements to file claims and other papers relating to the estate. Beginning January 1, 2002, this notice will be called a “notice to creditors.”
- Beginning January 1, 2002, serve a “notice of administration” on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify them of the time by which their claims must be filed.
- Object to improper claims and defend suits brought on such claims.
- Pay valid claims.
- File tax returns.
- Pay taxes.
- Employ necessary professionals to assist.
- Pay administrative expenses.
- Distribute statutory amounts or assets to the surviving spouse or family.
- Distribute assets to beneficiaries.
- Close probate administration.
What Is A Personal Representative, And What Does The Personal Representative Do?
The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The generic term “personal representative” has replaced such terms as “executor, executrix, administrator and administratrix.”
The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:
- Identify, gather, value and safeguard probate assets.
- Publish a “notice of administration” in a local newspaper, giving notice of the administration of the estate and of requirements to file claims and other papers relating to the estate. Beginning January 1, 2002, this notice will be called a “notice to creditors.”
- Beginning January 1, 2002, serve a “notice of administration” on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify them of the time by which their claims must be filed.
- Object to improper claims and defend suits brought on such claims.
- Pay valid claims.
- File tax returns.
- Pay taxes.
- Employ necessary professionals to assist.
- Pay administrative expenses.
- Distribute statutory amounts or assets to the surviving spouse or family.
- Distribute assets to beneficiaries.
- Close probate administration.
Who Can Be A Personal Representative?
- The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
- An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative.
- A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.
Who Has Preference To Be Personal Representative?
- If the decedent left a valid will, the designated personal representative nominated in the will has preference to serve.
- If the decedent did not leave a valid will, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs.
How Long Does Probate Take?
For estates not required to file a federal estate tax return, the final accounting and papers to close the probate administration are due within 12 months of issuance of letters of administration. This period can be extended, after notice to interested persons. The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the court because often the IRS’ review and acceptance of the estate tax return are not completed within that period. Estates that are not required to file a federal estate tax return and that do not involve litigation may often close in five or six months.
How Are Fees Determined In Probate?
The personal representative, the attorney and other professionals whose services may be required in administering the estate (such as appraisers and accountants) are entitled by law to reasonable compensation.
The fee for the personal representative is usually determined in one of five ways:
- as set forth in the will;
- set forth in a contract between the personal representative and the decedent;
- as agreed among the personal representative and the persons who bear the impact of the fee;
- as the amount presumed to be reasonable as calculated under Florida law if the amount is
without objection; or - as determined by the judge, applying Florida law.
Likewise, the fee for the attorney for the personal representative is usually determined:
- as agreed among the attorney, the personal representative and the persons who bear the impact of the fee,
- as the amount presumed to be reasonable calculated under Florida law, if the amount is without objection, or
- as determined by the judge, applying Florida law.
Can A Spouse Be Cut Out Of A Will Or Trust?
No. Florida law requires that in the absence of valid pre/post marital agreement, the surviving spouse is entitled to an elective share (approximately 30% of the fair market value of the decedent’s assets); exempt property (household furniture, certain automobiles and Florida College saving programs); family allowance ($18,000); and/or entitlement to an Intestate or Pretermitted share of the decedent’s estate. The right of the surviving spouse to receive from the decedent’s estate is neither obvious nor straight forward. Multiple overlapping laws come into play that if analyzed incorrectly could costs the surviving spouse a fortune.
How the probate system works:
Sometimes it becomes necessary for courts to oversee the distribution of your assets upon your death. That’s where probate comes in.
Probate is the legal process by which a person’s final debts are settled and legal title to property is formally passed from the deceased to his or her beneficiaries and heirs. There are many arguments for and against probate and its value in an estate plan.
Probate provides a court-supervised distribution of an estate’s assets. However, the process subjects an estate to public scrutiny and additional costs of probate. So before making a final decision, learn the role of probate in estate settlement to determine whether it would work in your own estate plan.
How probate begins
The probate process is initiated in the county of the decedent’s legal residence at death. Somebody acting on behalf of the decedent must come forward with the decedent’s original will. Usually, this person is named in the will as the executor, chosen by the decedent as the one in charge of “wrapping up” his or her affairs. If there is no will, somebody must ask the court to be appointed as administrator to perform the same function. Most often, this is the surviving spouse or an adult child. If there is a dispute over who should serve as administrator, the court will appoint a neutral public administrator who can be counted on to be fair. This person is paid an hourly fee from estate funds.
The executor and administrator have practically identical legal rights and responsibilities, and both may be referred to as the decedent’s personal representative. Note that the personal representative’s authority only extends to the “probate estate”—defined as property subject to the jurisdiction of the probate court. Assets disposed of outside the probate process are part of the “non-probate estate,” and the executor or administrator has no control over these. If a decedent has probate property outside the court’s jurisdiction, then that property must be subjected to ancillary probate in the other jurisdiction.
The executor-to-be should file (with or without the help of a lawyer) a Petition for Probate of Will and Appointment of Executor. This is done at the probate court clerk’s office. Probate court is a division of the state court system, but it might be referred to by another name. (A certified copy of the death certificate must also be shown to the court. One will need a death certificate for other purposes, so it is a good idea to order about ten copies initially. The coroner or mortuary can assist with this.)
A date is usually set for the person named as executor (or administrator) to appear before a judge, present the will, if any, and ask to be formally appointed. After a will’s genuineness and validity are established—by simple inspection of the document—the court issues an order “admitting the will to probate,” which the county clerk then records. In some states, expedited procedures may be available.
Once probated, a will is a public record, and so are the subsequent filings with the court. These papers are open to inspection by anyone. The laws in many states require public notice of the probate proceeding by the publication of newspaper ads.
The probate judge officially appoints the executor (or administrator). This appointment confers on the personal representative full authority to deal with the decedent’s probate property and accounts. The personal representative is given a certified court document that must be honored by financial institutions and others. In some places, this is called the “letters of administration” or “letters testamentary. ”
The three basic steps of probate
The steps of probate are tasks that have to be completed on behalf of any person who dies, whether he or she has a will, trust, or neither. These chores can be easy or very difficult, depending on the nature of the decedent’s property and the reasonableness of the people involved. But much of this business really cannot be avoided, even if probate itself is avoided.
Most states have streamlined probate procedures for handling the settlement of small estates and uncomplicated larger ones. In a few states, the procedure for small estates may not even require a trip to probate court. But even where court is necessary, if nobody is protesting or fighting over anything, the process need not be as bad as many people fear.
If the decedent left a will, there should be an executor named in it to manage the estate and wrap up the decedent’s affairs. If there is no will, the court will appoint an administrator to fill this role. The generic term “personal representative” is often used to refer to an administrator or executor. With or without a will, the probate process can be divided into three steps:
Step 1. Collection, inventory, and appraisal of all assets that are subject to probate
One of the executor’s or administrator’s first and most important duties after appointment is to take an inventory of estate assets. These assets include money that is owed to the decedent or the estate, e.g., loans, final paycheck, life insurance, or retirement account(s) made payable to the estate. This inventory must be filed with the court.
If the decedent’s property consists entirely of bank and stock brokerage accounts, for example, the account numbers and latest balances will be listed. Valuing real estate or an antique car collection, by contrast, would probably require a professional appraisal. The detail and accuracy necessary is dictated by the circumstances and degree of scrutiny being shown by other interested parties.
An estate checking account is usually a good practical idea for paying the decedent’s household final bills and estate expenses (e.g., attorney, appraiser). This checking account is useful for combining all the decedent’s financial accounts into a single pot. Thought should be given, however, before stocks or bonds are sold. It may be unwise, for example, to convert a good investment into cash in a checking account merely for convenience’s sake.
Step 2. Paying the bills, taxes, estate expenses, and creditors of the decedent
The personal representative is never personally responsible for paying these expenses out-of-pocket if estate funds are not available. The surviving spouse and children are generally given an allowance under the law, which varies greatly from state to state, whether or not there is a will. Generally, an allowance comes “off the top” and is set aside first. Thereafter, the order of payment of claims against the estate is usually:
- Costs/expenses of administration
- Funeral expenses
- Debts and taxes
- All other claims
The personal representative reviews the decedent’s final bills, debts, and any claims against him or her as well as the supporting proof. The personal representative then pays or settles those that are valid and rejects the rest. He or she may hire an attorney, with estate funds, for advice or to defend or negotiate any legal claims. (An example of such a claim may be a motorist demanding compensation for injuries suffered in a car accident caused by the decedent a few months previously.)
There are procedures under state law dictating what a rejected claimant or creditor can and must do next to keep the claim alive. This may even involve filing a lawsuit against the estate. Anyone who feels that the estate owes him or her money is likely to have only a limited time to begin further action. After that period expires, the claim may be barred forever. The certainty of that cut-off is an often-overlooked argument in favor of going through probate. Some states allow creditors to wait until after probate proceedings to approach (or sue) those to whom the estate has been distributed. If they have been given notice, however, most creditors will not wait until later, even if it is allowed.
Step 3. Formal transfer of estate property according to the will or by the state laws of intestacy succession (if there is no will)
When all rightful claims, debts, and expenses have been paid, the remainder of the property is distributed by the executor as the will directs. (At this point, if there is no will, the administrator distributes property according to state law.) The executor generally has the discretion to distribute the estate in cash or in kind (i.e., give away the property itself), but the will can specify otherwise.
The executor may sell or transfer real estate if the will permits it (most do), but only after a legally specified waiting period. The executor usually may sell or transfer the testator’s (decedent’s) personal property any time but may not begin final distribution of property or sale proceeds until after a waiting period provided by state law (e.g., six months).
When the waiting periods have expired and all legitimate bills, debts, and taxes have been paid, what remains of the estate is available for distribution to heirs or beneficiaries. Only then may the executor make disbursements of cash, send copies of documents such as deeds and investment statements showing new ownership, or transfer physical property to the respective beneficiaries.
The waiting period before property may be distributed, even were it not required by law, is a very practical idea. The personal representative cannot immediately rule out the existence of a forgotten lawful obligation the decedent might have left behind. In fairness, the law requires that all creditors of the decedent have notice and a chance to present their claims. That is also why the executor or administrator publishes a legal notice in the newspaper that the estate is in probate.
A final settlement or accounting is generally required of all the personal representative’s dealings on behalf of the estate. Any party who intends to object to any aspect of the probate proceeding should come forward and be heard at this point if not sooner. Once the judge approves the final settlement, the personal representative usually has no further duties, and the estate no longer exists.
Wills and other legal documents often refer to “real” and “personal” property. Real property refers to buildings and land; most people are familiar with that term. But many are unaware that personal property is a specific legal term referring to anything that is not real estate (e.g., cash, a computer, shares of stock, an individual retirement account).
The probate process is often portrayed as a nightmarish ordeal. If there is no conflict or controversy, however, much of it is simply wrapping up the decedent’s affairs and performing tasks that must be done even when probate is avoided.
The duties of personal representatives, executors, and administrators
Most wills give the executor very wide discretion in handling property and the affairs of the estate, and the law permits this. But the intention of the testator as expressed in the will should always be considered, as well as the desires of the estate beneficiaries when practical. For the sake of family harmony, it is ideal to choose an executor who is both fair and respected by all parties concerned. (When there is no will, the court chooses an administrator to fulfill the same kind of duties an executor would have.)
The executor should generally not act until the will is probated, because he or she has not been officially given authority until then. The executor should, however, pay for the funeral and take care of estate property before appointment if necessary (e.g., maintain real estate or continue to operate a business). The executor may hire, with estate funds, laborers, lawyers, accountants, and other professionals for assistance.
It is a good idea for the personal representative to demonstrate openness by sending notice of what is going on to all heirs and beneficiaries. This may even be required by state law. An heir is any of a decedent’s relatives who would be in line under state law to take a part of the decedent’s estate if the decedent died without a will—e.g., a child. A beneficiary is a person, related or not, whom the decedent has specifically named in a will, insurance policy, etc., to be a taker of his or her property. Often, of course, a decedent has specifically named his heirs as the beneficiaries under his will, policy, or retirement accounts.
The personal representative’s notice should state what action is about to be taken (e.g., when an auction is planned), indicate the court where estate papers are on file, and be accompanied by a copy of the will, if any. This small courtesy can prevent suspicion and bickering and is good legal strategy, too. If a party who has received this notice has an objection but fails to come forward, it now may find it very difficult to be heard by a judge later. For this reason, a personal representative should also give individual written notice to known creditors of the decedent even though notice is published in the newspaper.
If the personal representative is also a beneficiary under the will, or an heir according to law if there is no will (e.g., an adult child), he or she is absolutely forbidden to “self-deal” or give anyone preferential treatment. This is a frequent issue. Unfortunately, however, the executor is in such a privileged position that it is difficult for the law to provide a quick-enough remedy when this rule is violated. That is why it is so important to avoid this problem to begin with by writing a will and choosing an executor wisely rather than allowing the court to appoint an administrator who may not be the best person for the job. This is an argument for the use of an institutional executor such as a bank.
Note that, absent his or her own negligence or wrongdoing, the individual serving as executor or administrator is never personally responsible for satisfying claims or lawsuits against the decedent or the estate itself. But the personal representative does have a duty to gather whatever estate assets exist and to pay the decedent’s lawful obligations as far as possible. Meanwhile, the creditors, if any, have a prescribed period of time to come forward. So, the personal representative may indeed be personally liable for the debt if he or she has given away to the heirs or beneficiaries what should have gone to a creditor.
The personal representative must also act immediately to prudently invest estate assets. The law imposes a fiduciary duty on personal representatives to act cautiously and always to have the best interests of the beneficiaries in mind. If this duty is violated and a loss or waste of assets results, the personal representative may be ordered to pay compensation personally (or as an institution) to the beneficiaries in this situation, too.
The personal representative is not held responsible for a poor return on estate investments as long as any investments chosen by him or her are appropriate. For example, if a general market downturn decreased the value of the estate portfolio of bonds and blue chip stocks, the law would not hold the personal representative responsible. By contrast, if the personal representative lost money through risky speculative investments or failed to get a reasonable return by leaving substantial assets in a checking account, these would probably be considered inappropriate, and he or she might be individually liable.
The personal representative’s fiduciary duty also requires him or her to protect and preserve estate assets. For example, if estate funds were available but the personal representative neglected to pay an insurance bill and a fire loss to the decedent’s home resulted, the personal representative might well be held liable to the beneficiaries.
A personal representative is entitled to reasonable compensation often limited to a certain percentage (e.g., 5%) of the property in the probate estate. (Extra compensation related to handling some special matter may be allowed by the court.) That does not mean the executor automatically gets that much. The fee taken is usually listed on the final report and is, therefore, subject to approval by the court. Some states have an official “reasonable” fee scale for personal representatives and probate attorneys. These may actually be higher than fees in comparable cases in states that do not have official fee scales.
An objection can be raised if the fee appears excessive, considering the time and effort actually expended. Professional fees (lawyers, accountants, appraisers) will also be allowed. These fees must be reasonable, too, but are not subject to a set limit.
The personal representative has a great responsibility. A trustworthy person or institution should be named in one’s will to avoid the family strife that often follows when this choice has to be made by the court.
Summary of overview of the probate process
The probate process is not necessarily as difficult as people are led to believe. Much of the effort expended to wrap up a person’s affairs is necessary, even if probate court is avoided entirely. The process often goes smoothly, and when it does not, it is often because of difficulties—legal, financial, or personal—that are attributable to the decedent’s situation, not the court. These same issues would adversely affect the “peaceful” transition even if probate were avoided, and in some cases are better dealt with under court supervision.
Consider the pros and cons of probate as they apply to your own estate before making a decision one way or another about avoiding probate. Sometimes the best solution is to transfer some assets outside probate and others under its umbrella.
Neither New York Life Insurance Company nor its agents provide tax or legal advice for your personal circumstances. Please consult your tax and legal advisers to find out whether the general concepts in this material apply to your personal circumstances.
Definitions
A
Abatement: Cutting back certain gifts under a will when necessary to create a fund to meet expenses, pay taxes, satisfy debts, or to have enough to take care of other bequests which are given priority under law or under the will.
Acknowledgment: The act of going before a qualified officer (e.g., Clerk) and declaring the validity of the document. The officer certifies same, whose certification is known as the acknowledgment.
Acquit: The act of freeing a person from the charge of an offense by means of a decision, verdict or other legal process; to discharge.
Action: A civil judicial proceeding whereby one party prosecutes another for a wrong done or for protection of a right or prevention of a wrong; requires service of process on adversary party or potentially adversary party.
Actual Place of Business: Any location that the defendant, through regular solicitation or advertisement, has held out as its place of business (sec. 308.6 CPLR).
Ad Damnum: Clause of a pleading alleging amount of loss or injury.
Ademption: The failure of a specific bequest of property because the property is no longer owned by the testator at the time of his/her death.
Adjournment: A temporary postponement of the proceedings of a case until a specified future time.
Adjudicate: To hear or try and determine judicially.
Administrator: The title given to the person who is appointed by the probate court to collect assets of the estate, pay its debts, and distribute the rest to the appropriate beneficiaries. A person or institution appointed by a court to act on behalf of the deceased person in connection with the administration of decedent’s estate. The Probate Code generally sets forth the priorities for the appointment of an administrator, which generally start with the person most closely related to the decedent.
Administratrix: Female Administrator.
Administrator with Will Annexed: An administrator appointed by a Court to act on behalf of the estate of the deceased person who left a Will, but where no nominated Executor is willing and able to act.
Adversary: An opponent. The defendant is the plaintiff’s adversary.
Adversary System: The system of trial practice in the U.S. and some other countries in which each of the opposing, or adversary, parties has full opportunity to present and establish its opposing contentions before the court.
Affiant: One who swears to an affidavit; deponent.
Affidavit: A sworn or affirmed statement made in writing and signed; if sworn, it is notarized. A written or printed declaration or statement of facts confirmed by the oath or affirmation of the making party. A written statement or affirmation made under penalty of perjury and which requires notarization.
Affinity: Related by marriage; family relation from one’s spouse’s family.
Affidavit of Service: An affidavit intended to certify the service of a writ, notice, or other document.
Affirm: An act of declaring something to be true under the penalty of perjury by a person who conscientiously declines to take an oath for religious or other pertinent reasons.
Affirmation: A solemn and formal declaration under penalties of perjury that a statement is true, without an oath.
Affirmed: Upheld, agreed with (e.g.,The Appellate Court affirmed the judgment of the City Court).
Allegation: The assertion, declaration, or statement of a party to an action, made in a pleading, setting out what the party expects to prove.
Allege: To assert a fact in a pleading.
Alternate Juror: A juror selected as substitute in case another juror must leave the jury panel.
Amend: To change.
Amendment: Alteration of a law or resolution.
Amicus Curiae: A Friend of the Court. A non-party to a proceeding that the Court permits to present its views.
Ancillary Administration: Administration of an estate other than where the decedent was domiciled.
Annul: To make void, as to dissolve the bonds of marriage.
Answer: A paper submitted by a defendant in which he/she responds to and/or denies the allegations of the plaintiff.
Appeal: A proceeding to have a case examined by an appropriate higher court to see if a lower court’s decision was made correctly according to law.
Appearance: The participation in the proceedings by a party summoned in an action, either in person or through an attorney.
Appellant: The party who takes an appeal to a higher court.
Appellee: The party against whom an appeal is taken.
Arbitration: The submission voluntarily or involuntarily of a disputed matter to selected persons and the substitution of their award or decision for the judgment of a court or its confirmation by the court as a judgment of the court.
Argument: A reason given in proof or rebuttal.
At Issue: Whenever the parties to a suit come to a point in the pleadings which is affirmed on one side and denied on the other, they are said to be “at issue”.
Attachment: The taking of property into legal custody by an enforcement officer (see specialty section: Recovery of Chattel).
Attestation: The act of witnessing an instrument in writing at the request of the party making the same, and subscribing it as a witness.
Attorney of Record: Attorney whose name appears in the permanent records or files of a case.
Award: A decision of an Arbitrator.
B
Bail: The security given (or posted) to ensure the future appearance of a defendant.
Bar: 1.) Prohibit – to bar the prosecution of an action. 2.) The members of the legal profession.
Bench: The Judge’s seat or the judge, himself/herself, (e.g., the attorney addressed the bench).
Beneficiary: A person who receives benefits from a will, estate, trust or life insurance policy.
Bequest/Bequeath: Personal property left in a will. A bequest is a gift by Will of money or personal property (excluding land). To bequeath means to make such a gift.
Bifurcated Trial: A case in which the trial of the liability issue in a personal injury or wrongful death case is heard separate from and prior to trial of the damages in question.
Bill of Costs: A written statement of the itemized taxable costs and disbursements.
Bill of Particulars: Factual detail submitted by a claimant after a request by the adverse party which details, clarifies or explains further the charges and/or facts alleged in a pleading.
Bona Fide: In or with good faith, honestly, openly & sincerely, without deceit or fraud.
Bond: An insurance type policy in which the insurance company agrees to reimburse the beneficiaries if there are losses to the estate due to a person occupying a position of trust not carrying out his or her fiduciary responsibilities (if the PR steals from or loses assets of the estate).
Brief: A written or printed document prepared by the lawyers on each side of a dispute and submitted to the court in support of their arguments – a brief includes the points of law which the lawyer wished to establish, the arguments the lawyer uses, and the legal authorities on which the lawyer rests his/her conclusions.
C
Calendar: A schedule of matters to be heard in court.
Calendar Call: The calling of matters requiring parties, or their attorneys, to appear and be heard, usually done at the beginning of each court day.
Caption: In a pleading, deposition or other paper connected with a case in court, it is the heading or introductory clause which shows the names of the parties, name of the court, number of the case on the docket or calendar, etc.
Case File: The court file containing papers submitted in a case.
Cause of Action: Grounds on which a legal action may be brought (e.g., property damage, personal injury, goods sold and delivered, work labor and services).
Caveat: If an creditor of the estate of a decedent is apprehensive that an estate, wither testate or in testate, will be administered without the creditor’s knowledge, or if any person other than a creditor is apprehensive that an estate may be administered, or that a will may be admitted to probate, without the person’s knowledge, he or she may file a caveat with the court. Upon a probate proceeding opened, the court will notify that person of the opening.
Certified Copy: Copy of a document signed and certified as a true copy of an original by the Clerk of the Court or other authorized persons (e.g., lawyer).
Certificate of Readiness: A document attesting that the parties in a lawsuit are ready to go to trial.
Certify: To testify in writing.
Certiorari: A proceeding in the state Supreme Court under Art. 78 of the CPLR to review the decisions or actions of a public official or body, as in a tax certiorari matter, a review of the tax assessed challenge an exception taken to a juror before he/she is sworn challenge for a challenge based on a legally specified reason.
Change of Venue: The removal of a suit begun in one county or district to another county or district for trial, though the term may also apply to the removal of a suit from one court to another court of the same county or district.
Charge to Jury: In trial practice, an address delivered by the court to the jury at the close of the case instructing the jury as to what principles of law they are to apply in reaching a decision.
Chattel: Article of personal property.
Child: Biological offspring of the person making the will (testator), also persons legally adopted by the testator. The blood offspring of a parent. This excludes a step-child, a foster child or a grandchild. The law consistently treats an adopted person the same as a blood offspring.
Citation: 1) summons to appear; 2) reference to authorities in support of an argument.
Claims: Liabilities of the decedent, whether arising in contract, tort, or otherwise, and funeral expenses. The term does not include expenses of administration or estate, inheritance, succession, or other death taxes.
Clerk: The clerk or deputy clerk of the court.
Clerk’s Extract: A summary of a trial which is written by a clerk.
Clerk’s Minutes: Notes, which are taken by a clerk, of events that occurred in court.
Codicil: A supplement, addition or amendment to a will, not necessarily disposing of the entire estate but modifying, explaining, or otherwise qualifying the will in some way.
Commissioner of Jurors: A person in charge of summoning citizens for jury duty.
Commitment: An order to commit a person to the custody of a sheriff, commissioner of corrections, or mental health facility.
Common Law: The body of law which originated in England and upon which present day U.S. law is based.
Community Property: Generally all property acquired by a couple after marriage and before permanent separation. Real or personal property that is owned in common by husband and wife as a kind of marital partnership. Either spouse has management and control of the community real and personal property; however, both spouses must join in a transfer of ownership or lease for more than one year of community real property or a gift of community personal property. All property acquired during marriage from earnings, and the earnings themselves, are community property. Property acquired by gift or inheritance is separate property, not community property.
Compensatory Damages: Reimbursement for actual loss or injury, as distinguished from exemplary or punitive damages.
Complaint: The initial pleading in an action formally setting forth the facts and reasons on which the demand for relief is based.
Condemnation: See Eminent Domain.
Consanguinity: Related by blood.
Conservator: One who is appointed by a court to manage the affairs of a protected person. The individual or corporation who legally has the care and management of the person, property or both of an adult who is unable to provide for his personal needs or who is substantially unable to manage his financial affairs. Limited Conservatorships may be established for disabled adults.
Consolidated Action: Two or more actions involving a common question of law or fact may be consolidated by the court; the actions then are merged, becoming one action with one title, and they result in one verdict and one judgment.
Contempt of Court: An act or omission tending to obstruct or interfere with the orderly administration of justice or to impair the dignity of the court or respect for its authority.
Consolidate: A joining of two or more actions to be tried together.
Contested action: an action which involves disputed issue(s) of fact or law.
Contingent Beneficiary: Any person entitled to property under a will dependent upon the occurrence of an event. One to whom distribution is dependent upon the occurrence of an event. For Example: The death of a sibling.
Contract: a legally enforceable agreement between two or more persons or parties (oral or written).
Corroborate: To strengthen; to add weight by additional evidence.
Costs: The statutory sum awarded to the successful party when a judgment is entered. (Section 1901 all Court Acts.)
Counsel: Lawyer or attorney.
Counterclaim: 1.) In civil actions, a claim brought by a defendant against the plaintiff for an unlimited amount of money. 2.) In small claims/commercial claims, a claim brought by a defendant against the plaintiff for an amount not to exceed the maximum monetary jurisdiction allowed in the small claims/commercial claims court.
Court: The circuit court.
Court of Limited Jurisdiction: A City Court, District Court or other court that has jurisdiction only over actions authorized by law.
Court Reporter: A person who transcribes by shorthand or stenographically takes down testimony during court proceedings.
Creditor: An individual or entity to which the decedent was liable for money at the time of his or her death, and that the estate owes money to.
Crossclaim: Claim litigated by co-defendants or co-plaintiffs against each other and not against a party on the opposite side of the litigation.
Cross- Examination: Questioning by a party or his attorney of an adverse party or a witness called by an adverse party.
D
Damages: Monetary compensation or indemnity for wrong or injury caused by the violation of a legal right. 1.) Compensatory damages – Reimbursement for actual loss or injury. 2.) Exemplary Damages – Monetary award by way of punishment for injury caused by aggravated circumstances or malice, in addition to compensation for the injury. 3.) Punitive Damages – Monetary compensation awarded in excess of ordinary damages, as punishment for a gross wrong.
Date-Stamp: The stamping on a document of the date it is received.
Decedent: The person who has died and left the estate.
Decision: The determination reached by a court in any judicial proceeding, which is the basis of the judgment.
Declaration: A written statement made under penalty of perjury.
Declaratory Judgment: One fixing rights of parties without ordering anything to be done
Decree: A decision or order of the court – a final decree is one which fully and finally disposes of the litigation; an interlocutory decree is a provisional or preliminary decree which is not final.
Deductions: Items that cause the value of the estate to be reduced, such as, medical expenses from last illness, funeral expenses, taxes, cost of administration, etc.
Deed: A document that describes ownership in real property.
Default: A “default” in an action of law occurs when a defendant omits to plead or otherwise defend within the time allowed, or fails to appear at the trial.
Defendant: The party being sued or the party accused of committing the offense charged
Deliberation: The process by which a panel of jurors comes to a decision on a verdict.
De Novo: From the beginning, a new trial.
Deponent: One who testifies under oath to the truth of facts.
Deposition: Sworn testimony of a witness.
Devise: Any real or personal property that is transferred under a will. When used as a noun, a devise is a gift of real or personal property under a Will.
Devisee: The person who receives a gift under a Will .
Direct Examination: The first interrogation of a witness by the party on whose behalf the witness is called.
Directed Verdict: An instruction by the judge to the jury to return a specific verdict.
Discharge: Court order releasing the personal representative from any further duties regarding the estate.
Disclaimer: The rejection, refusal, or renunciation of a claim, power or property. A refusal to accept for example a testamentary gift, which is made in a prescribed manner and time.
Discovery (or Disclosure): A proceeding whereby one party to an action may be informed as to facts known by other parties or witnesses.
Dismissal: Termination of a proceeding for a procedurally prescribed reason.
Dismissal with Prejudice: Action dismissed on the merits which prevents renewal of the same claim or cause of action.
Dismissal without Prejudice: Action dismissed, not on the merits, which may be re-instituted.
Dispose: The act of terminating a judicial proceeding.
Disposition: The result of a judicial proceeding by withdrawal, settlement, order, judgment or sentence.
Dissolution of Marriage: The effect of a judgment of dissolution of marriage is to restore the parties to the state of unmarried persons.
Distributee: Someone who receives property from an estate. A person who receives property distribute to them by the Personal Representative who is settling an estate.
Docket: A document which summarizes a case.
Domestic Partner: In California one of two persons who have filed a Declaration of Partnership with the Secretary of State.
Domicile: That place where a person has a true and permanent home – a person may have several residences, but only one domicile. The location of a person’s permanent residence. This determines the laws that will govern the estate. . The domiciliary proceeding is that created in the jurisdiction of the decedent’s domicile.
Donee: One who received a gift from another, usually from a trust.
Donor: One who made the gift t another, usually in trust, while still alive.
E
Easement: Right held by one person to use the land of another for a special purpose.
Eminent Domain: The power to take private property for public use by condemnation, i.e., the legal process by which real estate of a private owner is taken for public use without the owner’s consent, but upon the award and payment of just compensation.
Enjoin: To require a person, by writ of injunction from a court of equity, to perform or to abstain or desist from some act.
Equitable Action (equity matter): An action which may be brought for the purpose of restraining the threatened infliction of wrongs or injuries, and the prevention of threatened illegal action; case in which payment of money damages will not be adequate compensation.
Equitable Distribution: The power to distribute equitably upon divorce all property legally and beneficially acquired during marriage by husband and wife or either of them, whether legal title lies in their joint or individual names.
Escheat: The term which describes the reversion of property to the State in the event a person dies leaving no valid Will and no heirs surviving him/her.
Estate: Property of a decedent that is the subject of administration. The property a person owns at the time of death. The property owned by a trust is sometimes called the Trust Estate.
Estate Taxes – Federal: Taxes imposed by the federal government on the transfer of assets from the dead to the living.
Estop: To stop, bar, or impede.
Estoppel: A rule of law which prevents a person from alleging or denying a fact, because of his/her own previous act.
Et Al: An abbreviation of et alia meaning “and others”.
Et Ano: And another.
Evidence: A form of proof or probative matter legally presented at the trial of an issue by the acts of the parties and through witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or the jury.
Eviction, Warrant Of: Legal mandate authorizing an enforcement officer to remove persons and their personal property from their premises.
Ex Parte: A proceeding, order, motion, application, request, submission etc., made by or granted for the benefit of one party only; done for, in behalf of, or on application of one party only. A judicial proceeding granted without notice.
Examination Before Trial (EBT): A formal interrogation of parties and witnesses before trial.
Execution: (1) The performance of all acts necessary to render a written instrument complete, such as signing, sealing, acknowledging, and delivering the instruments (2) Supplementary proceedings to enforce a judgment, which, if monetary, involves a direction to the sheriff to take the necessary steps to collect the judgment.
Executor: A person named by a testator to carry out the provisions in the testator’s will. The individual or corporation appointed in a Will by the testator to take care of the testator’s affairs after his death. Also called a personal representative.
Executrix: Typically refers to a gender (Female) personal representative/executor.
Exemplification: An official transcript of a document from public records, made in a form to be used as evidence and authenticated or certified as a true copy, (e.g. exemplification of a judgment).
Exempt Property: Estate property which is not subject to probate proceedings. The term generally used to refer to the $5,000 (amount may vary by state) worth of personal and household effects which are exempt from the claims of creditors and pass to the spouse, if they survive, or if no spouse survives to the children.
Exhibit: A paper, document or other article produced and exhibited to a court during a trial or hearing and, on being accepted, is marked for identification or admitted in evidence.
Expunge: The authorized act of physically destroying information, in files, computers or other depositories.
F
Fair Preponderance: Level of proof in a civil action; more than half; more convincing.
Fee: A fixed charge for service rendered on behalf of court.
Fiduciary: A person or institution who manages money or property for another, and who must exercise a standard of care in such management activity imposed by law or contract. A person acting in a position of trust. A Trustee, Attorney and Personal Representative are considered fiduciaries.
Finding: The court’s or jury’s decision on issues of fact.
Fine: A sum imposed as punishment for an offense.
First Paper: Paper instituting the action (e.g., Summons, Motion, Infants’s Compromise).
Foreclosure: A legal proceeding that bars or extinguishes rights.
Foreign Guardian: A guardian appointed in another state or country.
Foreign Will: The Will of any decedent domiciled outside of the state.
Foreperson: A member of a jury, usually the first juror called and sworn, or a juror elected by fellow jurors, who delivers the verdict to the court.
Formal Proceeding: In a formal proceeding in the Probate Court, a notice is sent to all the parties prior to a hearing. The hearing is a hearing held before the Probate Judge.
Forum: A judicial tribunal or a place of jurisdiction. A meeting for discussion.
Full Faith and Credit: A requirement of the U.S. Constitution that the records and judicial proceedings of one state shall have the same effect in courts of other states with the same jurisdiction.
G
Garnish: To attach a portion of the wages or other property of a debtor to secure repayment of the debt.
Garnishee: A person who owes a debt to a judgment debtor, or a person other than the judgment debtor who has property in his/her possession or custody in which a judgment debtor has an interest.
Gift Tax Annual Exclusion: In most cases both state and federal law allow a donor to exclude an amount of gifts from taxation each year, if the gifts are (1) of a present interest and (2) to a specific individual. A present interest gift is one in which the donee has an immediate unrestricted right of use, benefit and enjoyment. As of 2006, the federal amount is $12,000 per donor per donee per year.
Grantor: The individual or corporation who makes a grant (transfer) of property to another person, e.g., grantor of a trust, grantor of a deed of property.
The individual or corporation who legally has the care and management of the person, property, or both, of the child or persons. The individual or corporation who legally has the care and management of the person, property, or both, of the child or persons.
Guardian ad Litem: Person appointed by a court to represent a minor or incompetent for purpose of some litigation.
H
Habeas Corpus: “You have the body.” – The name given a variety of writs whose object is to bring a person before a court or judge – in most common usage, it is directed to the official or person detaining another, commanding him/her to produce the body of a person detained so the court may determine if such person has been denied his/her liberty without due process of law.
Hearing: A preliminary examination where evidence is taken for the purpose of determining an issue of fact and reaching a decision on the basis of that evidence
Hearsay: A type of testimony given by a witness who relates not what he/she knows personally, but what others have told the witness, or what the witness has heard said by others; may be admissible or inadmissible in court depending upon rules of evidence.
Heirs: An individual entitled by law to inherit from an estate.
Hung Jury: A jury whose members cannot reconcile their differences of opinion and thus cannot reach a verdict.
I
Impaneling: The process by which jurors are selected and sworn to their task.
Impleader: An addition of a third party to an action by the defendant.
In Camera: In the judge’s chamber out of the presence of the jury and the public.
In Default of Issue: As used in a Will, “in default of issue” means dying without leaving any living children, grandchildren, etc.
Incompetency: Lack of legal qualification or fitness (physical, intellectual or moral fitness) to discharge a legally required duty or to handle one’s own affairs; also relates to matters not admissible in evidence.
Indemnity: Security against loss or damages, exemption from penalty or liability, amount paid as compensation under an indemnity agreement.
Index Number: A number issued by the county clerk, which is used to identify a case – in civil matters there is usually a charge.
Individual Assignment System (IAS): A system, established for all civil actions and proceedings heard in Supreme and County Court, which provides for the continuous supervision of each action and proceeding by a single judge (NYS).
Indorsed Complaint: A statement of the nature and substance of the cause of action, for money only, which indicates the amount of the claim. It may be set forth upon the summons or attached to it. INFANT An individual who has not attained the age of eighteen (18).
Infant’s Compromise: A civil proceeding or motion for obtaining court approval of the settlement of an infant’s claim.
Informal Probate: The procedure normally used without notices and formal hearings for the settlement of an estate.
Inheritance Taxes: The taxes imposed, according to the relationship to the decedent, on the person who receives the property.
Injunction: A court order for a party to stop doing or to start doing a specific act.
Inquest: A proceeding which usually is a limited non-jury trial for the purpose of fixing the amount of damages where the plaintiff or defendant alone introduces testimony.
In Re: In the matter of; concerning.
In Rem: Regarding the right or title to property.
Intangible Personal Property: Personal property that has no physical form but derives its value from the rights and powers that it gives its owner, examples include stock, pension benefits, patent or copyrighted (intellectual) property.
Inter Alia: Among other things.
Interlocutory: Provisional; temporary; not final – refers to orders and decrees of a court.
Interpleader: Action by which one having possession of an article or fund claimed by two parties may compel them to litigate the title between themselves, instead of with him/her.
Interpreter: A person sworn at a judicial proceeding to translate oral or written language.
Interrogatories: Written questions propounded by one party and served on an adversary, who must provide written answers thereto under oath.
Intestate: When a person dies without having a will.
Intro Vivos Trust: A trust created “between the living.” The grantor (trustor) is a living person. An intro vivos trust can be either revocable or irrevocable.
Irrevocable Trust: A trust, whose terms and provisions cannot be changed, modified, altered, amended or revoked.
Issue: A multi generational term that includes all of a person’s lineal descendants that is children, grandchildren, great-grandchildren, etc.
J
Joint Tenancy: A way to hold title to jointly owned real or personal property. In the event of one owner’s death, allows for the automatic transfer to the surviving owner. A form of property ownership by two or more persons, often designated as “Joint Tenants with Right of Survivorship.” Joint tenants always own equal parts of joint tenancy property. When a joint tenant dies, his interest in the property automatically goes to the surviving joint tenant.
Joint Trial: Two or more actions involving a common question of law or fact may be joined by court order for trial – the actions are not merged but remain separate and distinct and may result in one or more verdicts and judgments.
Judgment: A determination of the rights of the parties in an action or special proceeding. A judgment shall refer to and state the result of a verdict or decision, or recite the circumstances on which it is based.
Judgment Roll: A record of the judgment with the supporting papers.
Judicial Hearing Officer (JHO): A person who has served as a judge or justice of a court of record of the Unified Court System, and who no longer is serving in such capacity, except a person who was removed from a judicial position pursuant to Section 22 of Article VI of the Constitution.
Jurisdiction: The geographical, subject matter, and monetary limitations of a court Personal Jurisdiction- Directed to a specific person to impose a personal liability on him (usually the defendant). Subject matter jurisdiction – Topic of consideration, thing in dispute, right claimed by one party against another.
Jury: A prescribed number of persons selected according to law and sworn to make findings of fact.
Jury (advisory): A body of jurors impaneled to hear a case in which the parties have no right to a jury trial – the judge remains solely responsible for the findings and may accept or reject the jury’s verdict.
Jury Instructions: Directions given by the judge to the jury.
K
L
Laches: The failure to diligently assert a right, which results in a refusal to allow relief.
Legal Age: Eighteen (18) years of age. See CPLR Section 1206.
Legal Aid: System by which legal services are rendered to those in financial need who cannot afford private counsel.
Letters of Administration: The authority granted by the probate court to the personal representative to act on behalf of the estate of the decedent and carry out his/her proper duties.
Liability: An obligation to do, to eventually do, or to refrain from doing something; money owed; or according to law one’s responsibility for his/her conduct; or one’s responsibility for causing an injury.
Liber: A book used for keeping a record of specific documents or events having legal effect.
Lien: A claim upon the property of another as security for some debt.
Life Estate: A type of real estate ownership in which a person has the right of possession during his/her lifetime, and the ownership passes to someone else upon death. An interest in property, the term of which is measured by the life of its owner.
Life Tenant: The person who receives the benefits from real or personal property during his lifetime only. The benefits stop when that person passes on.
Litigant: Party to a legal action.
Living Trust: A trust set up while a person is alive and which remains under the control of that person during his/her lifetime.
Long Form Order: An order prepared by counsel for signature of the court (usually based on a memorandum decision).
M
Maintenance: The furnishing by one person to another the means of living, or food, clothing, shelter, etc., particularly where the legal relations of the parties is such that one is bound to support the other, as between parent and child or between spouses.
Material Witness: Person whose testimony on some issue has been judicially determined as relevant and substantial.
Memorandum Decision: A written opinion or decision of a court on a litigated question, giving the court’s conclusion on factual and legal issues (this may constitute the order of the court if so stated).
Memorandum Opinion: Memorandum in writing, which is a very brief statement of the reasons for a decision, without detailed explanation.
Military Calendar: To hold in suspense an action that cannot reasonably be tried because a party or witness is in the military service.
Minor: Refers to a person who is under legal age (most states this would be eighteen years of age).
Minute Book: A Court Clerk’s Journal of Courtroom proceedings.
Minutes: A record of court proceedings kept by noting significant events.
Mistrial: A trial which has been terminated and declared void prior to the reaching of verdict due to extraordinary circumstance, serious prejudicial misconduct or hung jury – it does not result in a judgment for any party but merely indicates a failure of trial.
Moot: (adj.) Unsettled, undecided, not necessary to be decided.
Mortgage: An agreement by a lender in which there are terms for repayment of a monetary sum, used to finance real estate.
Motion: An oral or written request to the court made by a party for a ruling or order.
Movant: The party who initiates the motion.
Natural person: Individual (does not include corporate entities).
Negligence: Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
Non Seq. (Non sequitur): It does not follow.
Note of Issue: A document filed with the court placing a cause on the trial calendar.
Notice of Entry: A notice with an affidavit of service stating that the attached copy of an entered order or judgment has been served by a party on another party.
Notice of Petition: Written notice of a petitioner that a hearing will be held in a court to determine the relief requested in an annexed petition.
Nunc Pro Tunc: (now for then) presently considered as if occurring at an earlier date; effective retroactively.
O
Oath: A swearing to the truth of a statement which, if made by one who knows it to be false, may subject one to a prosecution for perjury or other legal proceedings.
Opening statement: The first address of counsel prior to offering of evidence.
Oral proof: Evidence given by word of mouth; the oral testimony of a witness.
Order: An oral or written direction of a court or judge.
P
Palimony: Term has meaning similar to ‘alimony’ except that award, settlement or agreement arises out of non-marital relationship of parties (i.e., non-marital partners).
Parcel: A tract or a plot of land.
Part: A court room where specified business of a court is to be conducted by a judicial officer.
Party: Person having a direct interest in a legal matter, transaction or proceeding.
Peremptory challenge: The challenge which may be used to reject a certain number of prospective jurors without assigning any reason.
Per Stirpes: To distribute a share to a descendant of a deceased beneficiary. This is a Latin term which used in a Will means that if a beneficiary of a Will dies before the testator leaving surviving children, or grandchildren, those children or grandchildren will take their deceased parent’s share under a Will.
Perjury: The act of lying or stating falsely under oath.
Personal Property: All items, both tangible and intangible, that usually has an ownership title and are not real property.
Personal Representative: The person authorized by the court to act on behalf of a decedent’s estate, usually the administrator or executor. The new word for the person who used to be known as the Executor or Administrator.
Petition/Motion: 1.) A formal written request to a court, which initiates a special proceeding. 2.) A written request to the court for an order. This is the nature of a request to the court to do something that you want them to do. The judge will review the motion or request; they will either have a hearing or dispense with the hearing and write an Order that tells you what their decision is.
Petitioner: In a special proceeding, one who commences a formal written application, requesting some action or relief, addressed to a court for determination. Also known as a plaintiff in a civil action.
Petit Jury: The ordinary jury for the trial of a civil case (so called to distinguish it from the grand jury).
Plaintiff: The party bringing a civil action.
Pleadings: Complaint or petition, answer, and reply.
Polling the Jury: A practice whereby the jurors are asked individually whether they assented, and still assent, to the verdict.
Pour-Over Will: A will that provides for the transfer of assets from the decedent’s probate estate to a living trust. A Will that provides for the transfer, after or during the probate court proceedings, of all or part of the net assets of a decedent’s probate estate from the executor’s control to the control of a Trustee who is in charge of a trust that was in existence immediately before the death of the deceased person (inter vivos trust).
Power of Appointment(s): A right generally given in a trust agreement for someone to designate who will receive property after the death of the life beneficiary (see life estate). . For example, your father might leave his estate to you for life and give you power to appoint the property at your death.
(1) GENERAL POWER: Enables the donee to designate himself, his creditors, his estate, the creditors of his estate, or any other person, as owner of the subject property.
(2) SPECIAL POWER: Limits the donee as to the persons to whom he can
designate as owners of the property over which he has a power of appointment. The limitation of appointment can be very specific, e.g., to a group consisting only of A’s children, but can never be the donee, his estate, his creditors, or the creditors of his estate because this would defeat the purpose of the special power, namely, to keep the appointive property from being taxed in the estate of the donee on his death.
Power of attorney: Instrument authorizing one to act legally for another either generally or in a specified matter.
Precedent: Previously adjudged action or decision on same or similar point, serving as a rule or example for present guidance.
Pretermitted Heir: One who would normally be beneficiary of the decedent but who is not mentioned in the Will.
Pro Se: A Latin adjective meaning “for self”, that is applied to someone who represents himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. This status is sometimes known as “propria persona” or “pro per”.
Probate Administrator: The legal process whereby a probate court supervises the marshalling of a deceased person’s debts and taxes and orders the property distributed according to decedent’s Will, or in its absence, to the deceased person’s heirs. The probate court has final judgment over the personal representative and the decedent’s assets.
Probate Court: The circuit court of jurisdiction that supervises the probate process.
Probate Estate: All the assets owned at death that require some form of legal proceeding before title may be transferred to the proper heirs.
Probate of Will: Means all steps necessary to establish the validity of a will and to admit a will to probate.
Proceeding: The succession of events constituting the process by which judicial action is invoked and utilized pursuant to procedure.
Preclude: To prevent or stop.
Pretermitted Heir: One who would usually be beneficiary of the decedent but who is not mentioned in the will.
Process: A legal means, such as a summons, used to subject a defendant in a lawsuit to the jurisdiction of the court; broadly, refers to all writs issued in the course of a legal proceeding.
Pro Se: For oneself; in one’s own behalf; in person; a pro se party is one who, without representation, acts as his/her own attorney.
Purge: To atone for an offense, to submit to a court’s mandate (i.e., to purge oneself of contempt of court).
Q
Quasi-Community Property: Property acquired by a husband and wife or registered domestic partners during their marriage or registered partnership while residing outside California, which would have been community property had it been acquired in California. : In California only, that property defined in Probate Code 201.5 as property acquired by decedent while living outside California, which, if acquired in California, would have been community property. For federal estate tax purposes, quasi-community property is treated like separate property.
R
Real Property: Land or things affixed to land. All property that is not real property is termed personal property. An interest in land or property permanently affixed to land.
Recuse: To disqualify oneself as a judge.
Redact: To edit, revise.
Referee: A person to whom a cause pending in a court is referred by the court to take testimony, hear the parties, and report thereon to the court, or to make a judicial determination – the referee is an officer exercising judicial powers and is an arm of the court for a specific purpose.
Relief: Legal remedy.
Remainder Interest: An ownership interest in property which will become a present interest after the present owner of life tenant has received all the property benefits to which he is entitled.
Remand: To send a case back from an appellate court to the lower court from which it came, for further proceedings.
Remittitur: Legal process by which an appellate court transmits to the court below the proceedings before it, together with its decision, for such further action and entry of judgment as is required by the decision of the appellate court.
Replevin: An action brought for the owner of items to recover possession of those items when those items were wrongfully taken or are being wrongfully kept.
Reply: A plaintiff’s response to a defendant’s answer when the answer contains a counterclaim.
Res: Subject matter.
Res Judicata: A thing judicially acted upon or decided.
Residuary Estate: All the property contained in the probate estate except for property that has been specifically and effectively left to designated beneficiaries.
Residue: The remaining part of a decedent’s estate after the payments of debts and legacies. Also called residuary estate.
Residuary Beneficiary: One to whom all or part of the residue is distributed.
Residuary Estate: The residuary estate is that portion of your total estate covered by residuary clause in your Will. The residuary clause of your Will disposes of all of your property not disposed of earlier in your Will. In other words, after you have made specific gifts, a residuary clause normally provides that you leave “all the rest, residue and remainder” of your estate to one or more beneficiaries.
Residuary Interest: An ownership interest in property which returns to the original owner when the intervening interest expires.
Respondent: One who formally answers the allegations stated in a petition which has been filed with the court. Also known as a defendant in a civil action.
Restore/Reinstate to calendar: To reinstate the action to active inventory.
Revocable Trust: A trust, whose terms and provisions can be changed, modified, altered, amended, or revoked.
Right of Representation: A method of distribution, sometimes referred to as “per stirpes,” whereby the share of the distribution of a deceased beneficiary is divided equally among his children.
S
Sanction: A penalty or punishment provided as a means of enforcing obedience to a law, rule or code; also, an authorization.
Satisfaction: Discharge of a legal obligation, as in a “Satisfaction of Judgment.”
Seal: To close a case file from public scrutiny – in instances of youthful offenders and acquittal, sealing orders are issued by the court to prevent the public from obtaining information on the cases.
Security for Costs: An undertaking required by a court to cover the payment of costs if the judgment is against the depositor.
Self-Proved Will: A will in which at least two witnesses took an oath that they observed the testator sign it and that the testator told them it was his/her will.
Separate Property: All property owned by a decedent that is considered neither community property nor quasi-community property, but wholly and separately owned by one spouse or registered domestic partner.
Separation: In matrimonial law, a cessation of cohabitation of husband and wife by mutual agreement, or in the case of “judicial separation,” under the decree of a court.
Sequester: To separate, set apart, hold aside for safekeeping or awaiting some determination; jurors are sequestered when not permitted to return home until the case is closed.
Service: The exhibition or delivery of a writ, notice, etc., officially notifying a person of some action or proceeding in which that person is concerned.
Settlor: Substitute word for grantor or trustor of a trust. The person who “settles” the assets into the trust.
Short form Order: an order prepared by the court.
Show Cause: An order, decree, execution, etc., to appear as directed, and present to the court such reasons and considerations as one has to offer why it should not be confirmed, take effect, be executed, or as the case may be.
Sine Die: Without a date, as in an action being adjourned sine die. Legal process which commands a witness to appear and testify.
Small Claims Assessment Review (SCAR): filing by any person aggrieved by an assessment of a one, two or three family, owner occupied residential structure used for residential purposes (including condominiums) (NYS).
Special Master: A special master is an attorney appointed on an ad hoc basis to assist the court in hearing motions (NYS).
Special Proceedings: General term for remedies or proceedings which are not ordinary actions, e.g., condemnation.
Special Referee (or Referee): The special referee has the authority to exercise judicial functions when assigned duties by the court to determine the following (1) to determine an issue (binding) (2) to perform an act (disclosure) (3) to hear and report – matrimonial actions may be included (NYS).
Special Term: A court part set aside to hear specific types of cases.
Special Verdict: A special finding of the facts of a case by a jury leaving to the court the application of the law to the facts thus found.
Statute of Limitations: A statute that declares that no actions of a specified kind be commenced after a specified period of time after the cause of action arose.
Stay: A stopping or suspension of procedure or execution by judicial or executive order.
Stipulation: An agreement by attorneys on opposite sides of a case as to any matter pertaining to the proceedings or trial – most stipulations must be in writing.
Stipulation of Settlement: A formal agreement between litigants and/or their attorneys resolving their dispute.
Sua Sponte: Upon its own motion, initiation or will; without a prior request.
Subpoena: Legal process which commands a witness to appear and testify.
Subpoena Duces Tecum: A subpoena requiring a person to produce specified documents or records in a trial.
Subpoena (judicial): An order issued by the court to a person to attend court and give testimony.
Subpoena Duces Tecum (judicial): An order issued by the court requiring a person to produce specified documents or records in a trial.
Subsequent Proceedings: Any proceeding or action taken with respect to a specific case after it has been filed with the court.
Succession: The method by which property is distributed when a decedent has left no will, as governed by state law.
Suit: A legal action or proceeding.
Sum Certain: Liquidated damages pursuant to contract, promissory note, law, etc.
Summary Judgment: A determination in an action on the grounds that there is no genuine issue of fact.
Summons: A form used to commence a civil action and acquire jurisdiction over a party.
Supplementary Proceedings: Further inquiry, under court jurisdiction, after entry of judgment, to determine means for enforcing the judgment against judgment debtor.
Surety: One who is legally liable for the debt, default, or failure to carry out a duty of another.
T
Tenancy in Common: The ownership of property by two or more persons in such a manner that each has an undivided interest which upon death passes according to his/her will or the laws of intestate succession. A form of holding title to real or personal property by two or more persons. Because there is no right of survivorship, the legal relationships and results are very different from joint tenancy. Tenants in common need not hold equal interests, and on the death of a tenant in common, his interest will pass by his Will or according to the laws of intestate succession.
Testamentary Trust: The trust that comes into being only as a result of the death of a person whose Will provides for the creation of the trust after his death; hence, the term “testamentary.” Once in existence, this trust is irrevocable.
Testate: Having left a will at death.
Testator: One who has made a will, who dies “testate”.
Testatrix: Female Testator.
Third-Party Action: A claim asserted by a defendant, styled a third-party plaintiff, against a person, styled a third-party defendant.
Trial Assignment Part (TAP): That part of the court which assigns cases for trial (NYS).
Testimony: An oral declaration made by a witness or party under oath.
Tort: An injury or wrong committed, either with or without force, and either intentionally or negligently, to the person or property of another.
Totten Trust: A form of revocable trust, usually a bank account, which allows distribution to the beneficiary upon the death of the Trustee, without the need for probate of the asset.
Transcript: The official record of proceedings in a trial or hearing.
Transfer: The removal of a cause from the jurisdiction of one court or judge to another by lawful authority.
Transfer Agent: A representative of a corporation who is authorized to transfer ownership of a corporation’s stock from one person to another, required when transferring a decedent’s stock to an heir or beneficiary.
Trial: The formal examination of a legal controversy in court so as to determine the issue.
Trial De Novo: A new trial (see: 22NYCRR 28.12).
Trust: A legal arrangement under which a person or institution (“trustee”) controls property given by another person “trustor”, “grantor”, “settler”) for the benefit of a third person (“beneficiary”). A legal entity established either during a Trustor’s lifetime (inter vivos) or at his death (testamentary). A trust must have a Trustee, a beneficiary and a “corpus” or property subjected to the trust.
Trustee: The individual or corporation who in a trust has bare legal title to the assets and has the power given in the trust to carry out the wishes of the person or persons (trustor/s) who created the trust. The trustee has a fiduciary obligation to the trust’s beneficiaries enforceable in court if not carried out. The trustee is subject to strict regulation. Although he has legal title for convenience, the beneficial or equitable title is in fact owned by the beneficiaries.
Trustor: The person or persons who establish a trust. There can be multiple Trustors.
U
Undertaking: Deposit of a sum of money or filing of a bond in court.
Uniform Transfers to Minors Act: A law that provides a way for someone to give or leave property to a minor by appointing a custodian to manage the property for the minor. The law which permits a person (“donor”) to register stock, bank accounts, or insurance in the name of another (“custodian”) for the benefit of one who is at the time a minor (“beneficiary”) without preparing a formal trust document. In effect, the trust document has been written into law. In doing so, the donor has made an irrevocable gift of the property to the minor but the custodian holds, invests, reinvests, and applies the property for the benefit of the minor until his maturity, at which time the property is turned over to the minor. This is a simple and inexpensive way to make small gifts to a minor.
V
Vacate: To set aside a previous action.
Venire: Technically, a writ summoning persons to court to act as jurors; popularly used as meaning the body of names thus summoned.
Venue: 1.) Geographical place where some legal matter occurs or may be determined. 2.) The geographical area within which a court has jurisdiction. It relates only to a place or territory within which either party may require a case to be tried. A defect in venue may be waived by the parties.
Verdict: The determination of a jury on the facts.
Verification: Confirmation of the correctness, truth or authenticity of pleading, account or other paper by an affidavit or oath.
Voir Dire: A questioning of prospective jurors by the attorneys, and, on application of any party, by the judge, to see if any of them should be disqualified or removed by challenge or examination.
W
Waiver: An intentional and voluntary relinquishment of some known right.
Warrant: A written order directing the arrest of a person issued by an authority – warrants are “issued,” “executed” or “canceled”.
Will: A written document, signed and witnessed as required by law, in which a person expresses what he/she wants to happen with respect to his/her property, children, pets, etc, after his or her death. This is the legal document that defines the final wishes of the deceased and, the details for distribution of the assets.
With Prejudice: The term, as applied to judgment of dismissal, is as conclusive of rights of parties as if action had been prosecuted to final adjudication adverse to the plaintiff.
Without Prejudice: A dismissal “without prejudice” allows a new suit to be brought on the same cause of action.
Witness: One who testifies to what he/she has seen, heard, or otherwise observed.
Writ: An order issuing from a court of justice and requiring the performance of a specified act, or giving authority and commission to have it done.
FAQ
What is probate?
Probate is a legal process by which a deceased person’s affairs are settled.
Probate is the legal process where a deceased person’s assets are properly distributed to heirs and beneficiaries. It is overseen by the courts to ensure that debts are paid and that the distribution of assets is done properly.
In this process all property is accounted for, debts are paid, and all remaining property is distributed to the rightful heirs. The term probate means “to prove the will” through a proceeding that usually occurs in court. In the event that a will does not exist or is not available, there are state laws to deal with the orderly distribution of assets to those who are entitled to inherit them.
Unfortunately, proceeding through probate can be long, daunting, expensive and at times overwhelming. This is to assure all involved that you do not have to do it alone. There are sources of assistance and options. The information contained on this page is meant to give you an overview of the process and is not legal advice.
What are assets in probate?
In most cases these are assets that are in the descendant’s sole name at time of death which contain no provision for automatic succession. This may include:
Bank accounts
Life insurance policies
Real estate
Vehicles
What does "probating a will" mean?
The term encompasses all the legal steps that are required to ensure that a will is valid and admitting it to probate.
What does "probating an estate" mean?
Probate is a legal process provided for by state laws. It helps determine the value of the person’s property and how these assets will be distributed to heirs. Proceedings take place in the circuit court where the deceased property owner lived or maintained his primary place of residence.
Is probate actually useful? If so, in what ways?
After your death, the person you named in your will as executor — or, if you die without a will, the person appointed by a judge — files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you’ve left. Then, relatives and creditors are officially notified of your death. That’s how it works. And the uses of probate to protect all concerned are obvious. Probate is designed to transfer titled assets to legitimate heirs, ensure that outstanding taxes and debts are paid, and to establish a valid Will left by the deceased.
Probate is the best method the courts have to verify that they Will a decedent has left behind is 100% authentic and 100% valid. All titled assets that were owned by the decedent are legally transferred and distributed to the named beneficiaries through probate. Probate also helps with the payment of taxes and debts that were owed by the decedent, and these are taken from the estate. If anyone contests the Will, this is another issue that is dealt with through the probate process. The Probate process ensures that: A person’s last Will and testament is dealt with fairly and in accordance with his or her wishes, and that an executor is appointed, whenever appropriate, to oversee the disbursement of assets. Assets are distributed fairly through probate, with the appointment of an official estate administrator, if there is no Will or executor of the estate.
Probate is also the best method the courts have to verify that issues regarding the validity of the Will are settled [during the probate process], before distribution of assets. Probate makes certain that all of the items listed in the decedent’s Will are legally transferred to the appropriate beneficiary or beneficiaries. It is also important to remember that some assets do not have to go through probate, although this depends on the laws of the state in which the Will is being dealt with. Assets such as joint bank accounts and properties that are in joint names are not included. Many states allow assets up to a certain value to be excluded from probate. If the assets in the decedent’s name are negligible, probate is typically not necessary.
Probate enables the decedent’s debts to be dealt with through the estate, and all balances settled prior to the disbursement of the estate’s assets. Probate allows for a specific time frame, generally 6 months from the inception of probate, to let creditors file their claims.
Who is responsible for handling all the stages of probate, beginning to end; often taking 2 years or longer?
The court assigns a Personal Representative (PR) to administer the probate case. Many times it is noted in the Will who is to be appointed. Under certain circumstances the court may appoint someone else other than who is stated in the Will. Once the PR is appointed, it is his or her responsibility to oversee all the stages of probate.
What is Involved in Settling an Estate?
First, a Notice of Petition to Administer Estate is filed with the court and the court appoints a Personal Representative (Executor / Executrix or Administrator / Administratix) to administer the Probate of the decedent’s estate. This process involves accounting for the assets, liabilities and taxes. The decedent’s property is said to be owned by the “estate” of the deceased person and must remain so until the judge or other court-appointed person says it may be distributed. It is often necessary to sell property to satisfy estate debts and close probate.
The timing for the entire probate process will differ depending upon the size and complexity of the estate. The minimum time an estate will likely be open is probably from six months to a year, and is often open longer for medium to large estates.
What costs are involved to initiate and complete the probate process?
Court costs, executor’s fees and possible expenses, a surety bond, appraisal fees, paying creditors, property taxes, maintaining real estate, utility bills, plus legal and accounting fees. If there is a “Will contested” expenses can run even higher.
How long does the probate process normally take? How does probate begin and end?
Probate frequently takes at least 9 to 18 months to complete the process, often a year to 2 years or even longer. If the Will is being contested, probate can drag on for even longer – sometimes taking several years. Some probate scenarios take 2 years or more. Many issues affect the probate time frame – for example the size of the estate, locating beneficiaries listed in the Will, validating the Will, and appointing an executor to the estate if there is no Will to refer to.
Where does probate physically take place, where is it initiated and managed from?
Probate usually occurs in the appropriate probate court in the County where the deceased lived. Probate papers are filed with the Clerk of the Circuit Court in the county where the deceased lived. There is a filing fee required. Once the fee is paid, the clerk assigns it a file number and maintains a docket sheet that lists all the papers that are filed with the clerk for probate administration. We highly recommend that you seek the council of a qualified probate attorney to handle this for you.
Who supervises the probate administration?
The probate proceeding is overseen by a Circuit Court Judge. The judge appoints the personal representative and resolves all questions raised during the administration of the estate.
Who can be a personal representative?
Also known as an executor, a personal representative can be an individual, bank or trust company. Any individual who is either a resident of the state, or is a spouse, sibling, parent, child or certain other close relative can serve as a personal representative. To be a personal representative, a bank or a trust company must be approved to do business in the state.
Who has preference to be a personal representative?
If the deceased left a valid will then then the person designated in the will will be nominated to serve.
If there is no valid will, then the surviving spouse has first preference, followed by the person selected by a majority of the heirs.
If I am named as Executor in the Will during probate, do I have to take on this responsibility?
No, it’s not mandatory. If you do elect to function as the estate’s Personal Representative you can step down at any time, although you may have to provide a written “accounting” for the time you did do the job. An alternate Executor named in the Will is then appointed by the probate court. If no alternate is named in the Will, or the named alternates die or does not wish take this responsibility on, or a person dies without a Will, the probate court will appoint someone to serve in this position throughout the probate process.
What are the Duties & Liabilities of a Personal Representative?
The Rights and Responsibilities of the Executor and Personal Representative during probate are numerous and varied. When the court appoints you as Personal Representative of an Estate, you become an officer of the court and assume certain duties and obligations. Below you will find a general list of the Personal Representative’s responsibilities in most counties. The list is not exhaustive and this site does not provide legal advice. An attorney is often sought to advise on these matters and you may wish to have a probate attorney review your case. At a minimum, you should understand the following:
- Filing Documents
You will need to file the necessary court documents to prove the decedent’s will. This is best accomplished with the help of an attorney.
- Inventory of Estate Property
- Locate, identify and gather and inventory of all the estate’s property: First, you must determine if there are any probate assets. You must attempt to locate and take possession of all the decedent’s property to be administered in the estate.
- Determine the value of the property: This can be done yourself or you can consult a professional to assist you such as an Attorney, Realtor or an Appraiser.
- File an inventory and appraisal: In most states within four months after letters are first issued to you as personal representative, you must file with the court an inventory and appraisal of all the assets in the estate.
- Managing the Estate’s Assets
- Prudent investments: You must manage the estate assets with the care of a prudent person who is dealing with someone else’s property. This means that you must be cautious and may not make any speculative investments.
- Keep estate assets separate: You must keep the money and property in this estate separate from anyone else’s, including your own. When you open a bank account for the estate, the account name must indicate that it is an estate account and not your personal account. Never deposit estate funds in your personal account or otherwise mix them with your or anyone else’s property. Securities in the estate must also be held in a name that shows they are estate property and not your personal property.
- Interest-bearing accounts and other investments: Except for checking accounts intended for ordinary administration expenses, estate accounts must earn interest. You may deposit estate funds in insured accounts in financial institutions, but you should consult with an attorney before making other kinds of investments.
- Other restrictions: There are many other restrictions on your authority to deal with estate property. You should not spend any of the estate’s money unless you have received permission from the court or have been advised to do so by an attorney. You may reimburse yourself for official court costs paid by you to the county clerk and for the premium on your bond. Without prior order of the court, you may not pay fees to yourself or to your attorney, if you have one. If you do not obtain the court’s permission when it is required, you may be removed as personal representative or you may be required to reimburse the estate from your own personal funds, or both. You should consult with an attorney concerning the legal requirements affecting sales, leases, mortgages, and investments of estate property.
- Receive Payments: You need to receive payments due the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits).
- Notice to Creditors
- You must mail a notice of administration to each known creditor of the decedent within four months after your appointment as Personal Representative. If the estate has an attorney, the firm will most likely take care of this for you and publish the notice in the local legal review or newspaper (the procedure and deadlines for creditors to file claims vary from state-to-state).
- You will need to continue to pay the decedent’s bills (including funeral costs and the expenses to administrate the estate), outstanding debts, valid claims and taxes as well as close unnecessary accounts such as utilities, charge cards and memberships
- File and pay income and estate taxes and notifying Social Security, Civil Service, and Veterans Administration of the death.
- Distribution of Assets
You must distribute the decedent’s property according to the will or state law (if there is no Will, the state’s “interstate succession laws” apply).
- Insurance
You should determine that there is appropriate and adequate insurance covering the assets and risks of the estate. Maintain the insurance during the entire period of the administration.
- Record Keeping
- Keep accounts: You must keep complete and accurate records of each financial transaction affecting the estate and provide an accounting to the court. You will have to prepare an account of all money and property you have received, your expenses, and the date of each transaction. You must describe in detail the remainder after the payment of expenses.
- Court review: Your account will be reviewed by the court. Save your receipts because the court may ask to review them. If you do not file your accounts as required, the court will order you to do so. You may be removed as Personal Representative if you fail to comply.
- Close Probate
You will need to attend the final hearing in order for probate to close and settle the case. All items above need to be complete before the judge will pronounce the case closed.
Do all assets, stocks, bonds, property, cash, etc. have to go through probate?
All of your assets do not have to go through probate. Most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure. In California, you can pass up to $100,000 of property without probate (other states will vary), and there’s a simple transfer procedure for any property left to a surviving spouse. Real property that passes through joint tenancy or a living trust, outside of the Will, is not subject to probate.
These items, however, must be assessed through the probate process: Assets named only in the deceased person’s name must go through probate. One-half of each asset registered as community property in the decedent’s name will go to his or her spouse. The deceased person’s portion or share of an asset where the asset is registered as tenants in common will go to other people; Assets, which are owned but are not registered, such as furniture, jewelry, etc. are appraised during probate. Some assets may be transferred without the need of probate assessment, including any assets held in joint tenancy such as land, property, vehicles, and bank accounts, any asset held in a living trust, most life insurance and retirement benefits.
During probate, you may have to sell some or all of the estate assets to pay taxes, fees and/or debts. The executor or administrator is expected to prepare a budget with an estimate of the federal estate tax, fees for the executor and attorney, administrative costs, cash bequests under the Will, and debts or claims. If there is not enough cash available, then a decision is made regarding which assets to sell. The court has to approve the sale of each asset before the executor or administrator may sell during a probate proceeding. A court order or court hearing may be necessary for different types of assets. If there is enough cash in the estate, then no assets need to be sold, but still can be put up for sale if the Executor determines this is the best course of action to take.
Although some sort of legal process is necessary to transfer legal title from the deceased’s name to his or her beneficiaries or heirs, many states will allow some types of property to pass on to beneficiaries completely free of the probate process, or through a simplified probate process. The more clear and precise the Will has been written, the better the chance of avoiding a lengthy probate process, or probate at all.
Probate isn’t required if the deceased/author of the Will did not own titled or considerable assets. An administrator is usually appointed to execute the Will if a family member cannot fill this function. The state will take ownership of the estate if there is no Will and no executor or family member to execute. Moreover, if no contractual obligation exists for the deceased’s half of the real property, land, assets, and so on to automatically go to the joint owner – the Will often names a different beneficiary for his or her 50% of the estate’s assets. One of the more common revenue items exempt from probate are life insurance policies. There are also other items, such as annuities, that are tied to contractual beneficiaries and therefore are specifically not subject to probate. There may be a contractual beneficiary on a bank account or trust, for example – also released from having to go through probate.
Real property, land, and certain other assets can also bypass probate, up to a set financial value (as per each state’s probate laws). These assets are handled in a simpler manner than probate affords. A Living Trust holding legal title to all or some of the estate’s property, naming a specific beneficiary or beneficiaries bypasses probate. A “Totten Trust” naming a specific beneficiary or beneficiaries may also shift assets to the beneficiary or beneficiaries without probate. Other types of benefits, such as a life insurance policy or annuity payable directly to a named beneficiary bypass probate, IRAs, Keoghs, and 401K’s transfer automatically, outside probate, to the estate’s beneficiaries. POD Bank accounts (i.e., ” payable-on-death”).
What do we do if the deceased owned land, a mobile home or houses in various states?
Probate petitions are filed in the county where the decedent was living at the time of expiration, regardless of where the person actually died. If a Will exists, after it is admitted to probate in his or her home state, the Will is usually submitted to probate in the other counties where the deceased owned real property. This additional probate system is called “ancillary probate”. It may be necessary for a local “personal representative” to administer any “in-state” home(s) or real property. If no Will exists, “out-of-state” real property falls under the probate laws of the other state or states. If there is no Will, probate is usually compulsory in each and every county where the real property is located, as well as in the “home state”.
This is exactly why, if you are now in the process of writing a Will, it would be wise to carefully specify all of your beneficiaries – taking into account any land or real property you own not only in the state you live in, but also in other states. If you do not name the beneficiaries carefully in your Will, each state will manage the disbursement of your estate and land under their in-state-specific laws, and your real property may eventually end up in the hands of parties not intended to receive this land or real property after death and subsequent probate process. A carefully written Will should serve to avoid this type of problem.
How are Federal & State taxes owed by the deceased, by the estate, dealt with during probate?
With respect to federal & state taxes, a death terminates the decedent’s final tax year as far as filing an income tax return is concerned, and it creates a new entity for tax purposes called an “estate.” The estate has to complete and file one or more of the following for Federal taxes: Final Form 1040 Federal Income Tax return; Form 1041 Federal Fiduciary Income estate Tax returns; Form 709 Federal Gift Tax return(s); Form 706 Federal Estate Tax return.
As for the state – state income tax return and any state income tax returns during the probate period, plus possible estate tax, inheritance tax and gift tax returns may need to be filed by the executor. However, requirements vary state to state; and inheritance, gift and estate taxes have been eliminated by some states, as far as many of the smaller sized estates are concerned. Your probate attorney will be able to determine how your state’s rulings specifically impact you and your family. Your executor or personal representative should also carefully look for any other real estate, personal property, business, or other state tax liabilities or concerns that may affect you and your family during probate.
What happens if the Personal Representative of the probate does an incomplete or shoddy job?
A probate executor or administrator who is derelict in their duty during the probate process is personally liable for damages caused in the administration of the estate and actually might wind up paying for any losses out of his or her own pocket.
How many proceedings are there for the administration of an estate?
In Florida, there are four distinct proceedings (other states may be similar):
- Formal Administration: This proceeding is used when there are considerable assets and it’s necessary to have a personal representative appoints to act on behalf of the estate.
- Family Administration: When the beneficiaries of the estate are the surviving spouse and lineal descendants, and the estate is less than $60,000 for federal estate tax purposes, this proceeding is usually used.
- Summary Administration: When the estate is not more than $25,000 or the descendent has been dead for more two years, a Summary Administration is the proceeding used most often.
- Disposition without Administration: When the estate assets don’t exceed funeral expenses plus the cost of medical and hospital expenses, this proceeding is necessary.
What often happens if there are formal objections made to the Will during probate?
A “Will contest” will be initiated if anyone with reasonable “standing” to object files a formal objection to the Will during this stage of the probate process. Reasons underlining proper “standing” to object to a Will might be that the Will was not properly drawn, signed or witnessed; or that the decedent lacked proper mental clarity at the time the Will was executed; or that the Will has been corrupted somehow by fraud or unwarranted influence of some kind; or perhaps the objection may insist that the Will itself is an out and out a forgery.
An objection to the Will may be driven a family member’s insistence to install a different Personal Representative to manage the probate process; or perhaps someone in the family was cut out of the Will. If, for example, the Will leaves a sister 3/4 of a parent’s estate and a bother 1/4, the brother receiving the smaller share of the estate has proper “standing” to call for a Will contest. Or, if a Will executed a year prior to the death of the parent is less favorable to someone in the Will than a version of the Will executed 10 years ago, that individual would be considered to have “standing” to contest the Will at this stage of the probate process.
If, as a result of a serious objection or objections, the Will is deemed at this stage of probate to be invalid, the probate court may invalidate the entire Will, or only the challenged section of the Will. If the entire Will is deemed to be invalid by the probate court, the estate will be distributed under the state’s probate laws of “intestacy” (i.e., as if there had never been a Will).
Is it always necessary to go through probate if there is a valid Will?
Avoiding probate requires a good estate attorney and a great deal of planning. There are various ways to avoid probate, as reviewed below.
Generally it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased’s property can be legally distributed. As long as a person passes away with a Will intact, probate court allows others to object to that Will, and will determine if that Will is valid in spite of those objections during probate. It might be possible that (A) there was a later Will (which, if valid, would replace the older Will), or (B) the Will was made at a time the deceased was not mentally competent to make a Will, or (C) the Will was the result of fraud, mistake or “undue influence” or (D) the Will was not properly “executed”, or (E) the Will in question is a forgery, or (F) for some other reason (like a pre-existing contract) the Will is not 100% valid, or (G) there are numerous other claims against the estate that will affect what the beneficiaries will inherit under the provisions and requests under the Will.
No one will take part in any transactions involving such inherited property prior to the Will being admitted to probate and/or an appropriate party lawfully appointed to represent the estate. If the deceased owned real estate in his or her own name, no well-informed outside party or parties would assume title to the property, and no bank would sign-off on a new mortgage, unless the estate went through the process of probate in order for “clear title” to be approved for the new buyer.
During probate, how do we deal with debts left behind by the deceased?
If the deceased passes away with unresolved debts, probate typically gives creditors six months from notification of probate to file their claim. Once these claims have been filed, the remainder of assets can be distributed accordingly. Probate allows for the distribution of the decedent’s assets in accordance with the Will (if there is a Will) and, similarly, deals with debts and taxes that the deceased may have owed when he or she passed away.
How, why and when is probate a necessary legal process? Does this apply to all states?
Probate is used to legally transfer title of the deceased (decedent’s) property to his or her heirs and/or beneficiaries. If there is no property to transfer, there is typically no need to go through the process of probate. Another function of probate is to provide for the collection of any taxes due by reason of the deceased’s death or on the transfer of their property. Probate also provides a way to pay outstanding debts and/or taxes connected to the estate, for setting a deadline for creditors to file claims (which stops unpaid creditors from pursuing heirs or beneficiaries) and for the distribution of the remainder of the estate’s property to the decedent’s legal heirs.
During probate certain members of an estate might insist on contesting the Will, this is allowed by the courts. Probate is also necessary to validate the Will and ensure that the Will was actually written by the decedent and that the decedent was ‘of sound mind’ when he or she created the Will. Even though the decedent may have made it clear in the Will who the beneficiaries are, certain relatives may want to question the validity of the Will, and have the legal right to do so. This is an issue that would come under the probate process. If the decedent left a great deal of cash, bonds, stock and/or real estate in the estate, there is always the possibility that distant relatives may enter into the picture and claim a piece of the estate, whether the Will names them as heirs or not.
Probate is used to make sure the Will was not written or dictated under adverse influences or that the Will is not a fraud; that the Will was legitimately executed by the decedent – and that he or she was of sound mind when he or she wrote or dictated the Will. When determining the validity of a Will, the court must establish if the Will is actually the most up to date Will, and that there is not a more recent Will that would then invalidate the old Will. Probate is necessary for many reasons. It is also used to ensure that the estate left by the decedent is distributed fairly and legally, in agreement with the deceased’s requirements.
During the probate process, the value of the estate and assets of the decedent Will be confirmed as well as any liabilities the decedent may have: unpaid taxes, outstanding loans, mortgages and other debts. Probate allows legitimate creditors to file a claim to regain money owed to them. Probate guarantees that any assets, cash, bond, stocks, jewelry, valuables, real property, land, or business interests left to beneficiaries in the Will are legally reassigned to the beneficiaries during probate.
In short, probate guarantees that the estate is distributed fairly and properly, as dictated by the decedent’s Will.
How are creditors of the estate (parties the deceased owed money to) dealt with during probate?
As part of the probate process, creditors are notified of the death. Creditors are expected to file a claim for whatever they are owed within a certain time frame – either with the Personal Representative or, if appropriate to the respective probate of laws of that state, or with the probate court itself. Creditors’ claims are either approved or rejected by the executor. If approved, what is owed is paid out of the estate. If the claim is rejected, creditors can sue the estate for what is owed. The Executor is forced to sell property to pay off approved creditor claims if there is not money in the estate.
What exactly is the "Uniform Probate Code"? Does this apply to probate of inheritances in all states in the U.S.?
The Uniform Probate Code, accepted by 18 states, specifies the rights of a surviving spouse when their spouse passes without a will. The rights include: If there are no parents, children, or grandchildren of the deceased spouse, the surviving one inherits the estate; if a parent survives, the surviving spouse inherits the first $50,000, then splits the remaining half of the estate with the parent(s); if a child or grandchild survives, the surviving spouse inherits the first $50,000 and then splits the remaining 50% of the estate with the child or grandchild. All states in the USA and the District of Columbia have enacted laws governing most aspects of estate planning and probate — legal validity of wills, creation of trusts, the probate process, and more. These laws can fall under various names, often as collections of laws called “codes.” The different estate and probate codes that can be found from state to state include “Decedents’ Estates,” “Trust and Fiduciaries,” “Estate Administration,” and the “Uniform Probate Code.”
Can we take care of probate without an actual "probate attorney" being involved?
Lawyers generally keep the proceedings formal and professional. There are no laws that insist you use a lawyer, or probate attorney, however probate is a legal process. One mistake or missed deadline could cause a great many problems for everyone involved with the estate. The probate process has to remain error-free. An experienced probate lawyer can guide you through the probate process and make sure there are no unnecessary delays. A probate attorney specializes in the area of law related to the legal process that takes place when a person passes away. The probate attorney will file the required paperwork and appear in court on behalf of the executor of the person’s estate. The probate attorney will also usually handle probate specific details such as proving that a deceased person’s will is valid, having the estate appraised, and paying outstanding debts, and helping in the details of inherited property.
You normally do not need a probate attorney if your estate is valued at less than $100,000. In this case, there are some simple forms that allow your survivors to easily transfer your property without the need for probate
Is probate mandatory after someone passes away? How could we completely avoid probate?
One of the easiest ways to keep your money out of probate is a payable-on-death (P.O.D.) bank account. All you need to do is fill out a simple form, provided by the bank, naming the person you want to inherit the money in the account at your death. As long as you are alive, the person you named to inherit the money in a payable-on-death account has no rights to it. You can spend the money, name a different beneficiary, or close the account.
When you open a retirement account such as an IRA or 401(k), the forms you fill out will ask you to name a beneficiary for the account. After your death, whatever funds are left in the account will not have to go through probate; instead, the beneficiary you named can claim the money directly from the account custodian.
If you’re single, you’re free to choose whomever you want as the beneficiary. If you’re married, your spouse may have rights to some or all of the money. If you have a 401(k) account, your spouse is entitled to inherit the money unless he or she agrees, in writing, to your choice of someone else. If you live in a community property state, chances are your spouse owns half of what you have socked away in a retirement account. (Community property states are Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin; in Alaska, couples can sign an agreement making some or all of their property community property.) If any of the money you contributed was earned while you were married, that money remains “community property,” and your spouse owns half.
The Uniform Transfer-on-Death Securities Registration Act allows you to name a person to inherit your stocks, bonds or brokerage accounts free of probate. It is similar to a payable-on-death bank account. When you register your ownership, either with the stockbroker or the company itself, you make a request to take ownership in what’s called “beneficiary form.” When the papers that show your ownership are issued, they will also show the name of your beneficiary.
With respect to your car – to name an automobile transfer-on-death beneficiary, all you need do is register the vehicle in a “beneficiary form.” The new registration certificate will list the name of the beneficiary, who will automatically own the vehicle after your death. States such as California, Connecticut, Kansas, Missouri, and Ohio offer car owners the option of naming a beneficiary, right on their certificate of registration, to inherit a vehicle. If you do this, the beneficiary you name has no rights as long as you are alive. You can sell or give away the car, or name someone else as the beneficiary.
Several methods of joint ownership, such as joint tenancy, provide a way to avoid probate when the first owner dies.
Many couples conclude that holding title to their major assets in a form of joint ownership that avoids probate is all the estate planning they want to engage in, at least while they are younger. The most attractive features of this strategy are its simplicity and economy. To take title with someone else in a way that will avoid probate, you usually don’t have to prepare any additional documents. All you do is state, on the paper that shows your ownership (a real estate deed, for example), how you want to hold title.
Joint tenancy with right of survivorship: Property owned in joint tenancy automatically passes, outside of probate, to the surviving owner(s) when one owner dies. Joint tenancy often works well when couples (married or not) acquire real estate, vehicles, bank accounts, securities, or other valuable property together. Setting up a joint tenancy is simple and free. However, setting up joint tenancy in Texas requires that all joint tenants to sign an agreement. If you wished to set up a joint tenancy bank account, specifying your arrangement on the bank’s signature card isn’t enough. A bank or real estate office should be able to give you a fill-in-the-blank form that will do the trick.
After one joint owner dies, generally all the new owner has to do is fill out a straightforward form and present it, with a death certificate, to the keeper of ownership records: a bank, state motor vehicle department, or county real estate records office.
Joint tenancy is usually a poor estate planning choice when an older person, seeking only to avoid probate, is tempted to put solely owned property into joint tenancy with someone else. Beware of certain issues…You are giving away part ownership of your property. The new owner has rights that you can’t take back. For example, the new owner can sell or mortgage his or her share — or lose it to creditors. You may have to file a gift tax return. If the value of the interest you give to a new co-owner (except spouse) exceeds $11,000 in one year, you have to file a gift tax return with the IRS (unless you’re adding a joint tenant to a bank account to which you deposited the money; in that case, no gift is made until the other person withdraws money). No tax is actually due, however, until you leave or give away a very large amount (currently, more than $1 million) in taxable gifts.
A great many people err on the side of adding a person as a joint tenant to a bank account strictly for “convenience.” sake. They want someone to help them out by depositing checks and paying bills. But after the original owner dies, the co-owner may claim that he or she is entitled, as a surviving joint tenant, to keep the funds remaining in the account. In some instances, maybe that’s what the deceased person really intended — it’s too late to ask.
Tenancy by the entirety: In certain states, married couples often take title not in joint tenancy, but in “tenancy by the entirety” instead. It’s very similar to joint tenancy, but can be used only by married couples. Both avoid probate in exactly the same way.
If you are married (California allows people to register with the state as domestic partners) and live or own property in Alaska, Arizona, California, Nevada, or Wisconsin, another way to co-own property with your spouse is through community property with the right of survivorship. If you hold title to property in this way, when one spouse dies, the other automatically owns the asset. Transferring title to the survivor is simple and doesn’t require court proceedings.
Revocable Living Trusts were invented to help people avoid probate entirely. The advantage of holding your valuable property in trust is that after your death, the trust property is not part of your estate for probate purposes. (It is, however, counted as part of your estate for federal estate tax purposes.) That’s because a trustee — not you as an individual — owns the trust property. After your death, the trustee can easily and quickly transfer the trust property to the family or friends you left it to, without probate. You specify in the trust document, which is similar to a will, which you want to inherit the property.