In the trying time with the loss of a loved one, you may need to determine how to handle the estate of that person. Everyone has heard the term “probate”. But what does this mean? How does this happen? What must be done? Where do you start? Who do you contact or notify? All these are dizzying questions. Estates can be a tricky. This blog covers five basic concepts or questions to be answered to help you understand the process of opening an estate and helping an attorney move it through probate process.
The first question is whether the estate is testate or intestate estate. A Testate Estate is the term used when the individual who passed (known as a “Decedent”) had a Will at the time of his or her death. As one may assume, an Intestate Estate occurs when the Decedent died without a Will. This is significant because it determines how the estate is distributed, meaning who exactly inherits what. In a Testate Estate, the individuals entitled to inherit property (land or things) of the Decedent are named in the Decedent’s Will. On the other hand, in an Intestate Estate, inheritance is determined by what is known as “intestate succession”, pursuant to Indiana Statutory Law passed by the General Assembly. Therefore, the first step to opening an estate is to determine whether the Decedent had a Will at the time of his or her death. If there is a will or related documents such as codicils, gathering them up is a good way to start the process and learn a little bit about the law along the way.
A second point you should know is just because the Decedent left a Will at the time of death does not necessarily mean that the Court is going to follow or accept it. To expand, Will’s (just like estate law in general) are very technical, and there are several requirements for a Will to be considered “valid” by a Court. A couple of the requirements for a Will to be considered “valid” are that the Will must be in writing, and there must be two witnesses present at the signing of the Will. Furthermore, the Decedent must have had the mental capacity to fully understand what he or she was signing at the creation of the Will. These are by no means all the requirements for a valid Will. These offer you key starting points to raise with estate counsel when determining the validity of the Will and who may challenge it and on what grounds. A key take-away is the presence of a Will does not automatically decide that it will be a Testate Estate.
Thirdly, where there is a valid Will, and therefore a Testate Estate, Beneficiaries (also referred to as “legatees” and/or “devisees”) must be located. They are those individuals named in the Will that are entitled to inherit some portion of the Decedent’s estate. On the other hand, if no Will was left, or a Will is contested or otherwise deemed invalid, individuals who are entitled to inherit some portion of Decedent’s estate are known as Heirs. The importance of determining the Beneficiaries or Heirs (depending on whether it is testate or intestate) to the estate is that they must be notified upon the opening of an estate. Notifying all appropriate Beneficiaries or Heirs upon the opening of the estate is extremely important, and the failure to do so could lead to further legal and court fees. Help your attorney help the process along in an organized and smooth fashion by doing this leg work?
It may be clear by this point the estate attorney cannot (and should not have to) do all the work related to the estate. This is where the Personal Representative comes in. This is the individual who will oversee administering and distributing the estate. In other words, the Personal Representative is the individual who is in charge and makes all the decisions. Individuals can be named or appointed Personal Representative in several different ways. For example, an individual can be named the Personal Representative in the Decedent’s Will, an Heir or Beneficiary can be appointed as the Personal Representative, or the Personal Representative can be some third party selected and agreed upon by the Heirs or Beneficiaries. An individual must meet certain requirements to serve as the Personal Representative. Furthermore, there are certain restrictions that prohibit individuals (such as having a prior felony conviction) from serving as Personal Representative, which are set forth in Indiana Statutory Law. It is important to choose wisely when it comes to a Personal Representative, as they have a lot of power and control over the entire estate. If you are involved in an estate, know the role and broad powers of the Personal Representative.
Outside the opening of an estate or disputes, the court may or may not play a bigger role with the attorneys and personal representative. Specifically, at the time of opening an estate, individuals must determine whether the estate will be unsupervised or supervised. An Unsupervised Estate means there is no court supervision when it comes to the administration of the estate. In an Unsupervised Estate the Personal Representative can make decisions related to the estate without first having to obtain authorization from the court. Before an estate can be Unsupervised, all the Heirs or Beneficiaries to the estate must be in agreeance. Furthermore, the estate must be considered “solvent” (meaning the estate has a positive net worth). In a Supervised Estate, the Personal Representative must first obtain the court’s authorization before any decision is made or action is taken. If the Heir or Beneficiaries are unable to come to an agreement, the Court will most likely order a Supervised Estate. The Court will also make the estate Supervised if it is “insolvent” (meaning the estate is in debt). The situation and surrounding circumstances will also help to decide whether a Supervised or Unsupervised Estate is more appropriate.
The takeaways from this blog is that the opening of an estate requires a lot of work and investigation. There are no hard and fast answers to provide. It is hope this blog provides you with a summary of the key aspects of estates. Dixon & Moseley, P.C. advocates handle estate cases and disputes through the State. This blog is written for general informational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.